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Full text of "The constitutional history of England, from the accession of Henry VII to the death of George II"

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7 



THE 



CONSTITUTIONAL 



HISTORY OF ENGLAND 



FROM THE ACCESSION OF HENRY VII. TO 
THE DEATH OF GEORGE U. 



By henry HALLAM, LL.D., F.R.A.S., 

FOREIGN ASSOCUTE OF TUE INSTITUTE OF FRANCE. 



IN TWO VOLUMES. 
VOLUME II. 



NEW YORK 

A. C. ARMSTRONG AND SON 

714 Broadway 
1886 



HI 




CONTENTS 

OF 

THE SECOND VOLUME. 



Part II. 

Abolition of the Monarchy — and of the House of Lords — Commonwealth 
— Schemes of Cromwell — His Conversations with Whitelock — Unpop- 
ularity of the Parliament — Their fall — Little Parliament — Instrument 
of Government — Parliament called by Cromwell — Dissolved by him — 
Intrigues of the King and his Party — Insurrectionary Movements in 
1655 — Rigorous Measures of Cromwell — His arbitrary Government — 
He summons another Parliampnt — Designs to take the Cro>\Ti — The 
Project fails — but his xVuthority as Protector is augmented — He aims 
at forming a new House of Lords — His Death — and Character — Rich- 
ard his Son succeeds him — Is supported by some prudent Men — but 
opposed by a Coalition — Calls a Parliament — The Army overthrow 
both — Long Parliament restored — Expelled again — and again re- 
stored — Impossibility of establishing a Republic — Intrigues of the Roy- 
alists — They unite with the Presbj'terians — Conspiracy of 1659 — 
Interference of Monk — His Dissimulation — Secluded Members return 
to their Seats — Difficulties about the Restoration — New Parliament — 
King restored — Whether previous Conditions required — Plan of reviv- 
ing the Treaty of Newport inexpedient — Difficulty of framing Condi- 
tions — Conduct of the Convention about this not blamable — except in 
respect of the Militia — Conduct of Monk Page 2 



CHAPTER XL 

FROM THE RESTORATION OF CHARLES II. TO THE FALL OF THE CABAL 
ADMIjaSTRATION. 

Popular Joy at the Restoration — Proceedings of the Convention Parlia- 
ment — Act of Indemnity — Exclusion of the Regicides and others — 
Discussions between the Houses on it ^- Execution of Regicides — Resti- 
tution of Crown and Church Lands — Discontent of the Rovalists — Set- 



VI CONTENTS OF THE SECOND VOLUME. 

dement of the Revenue — Abolition of Militaiy Tenures — Excise granted 
instead — Army disbanded — Clergy restored to their Benefices — Hopea 
of the Presbyterians from the King — Projects for a Compromise — 
King's Declaration in favor of it — Convention Parliament dissolved — 
Different Complexion of the next — Condemnation of Vane — its Injus- 
tice — Acts replacing the Crown in its Prerogatives — Corpqjatipn Act — 
Repeal of Triennial Act — Star-chamber not restored — Presbj'terians 
deceived by the King — Savoy Conference — Act of Uniformity — Ejec- 
tion of Non-conformist Clergy — Hopes of the Catholics — Bias of the 
King towards them — Resisted by Clarendon and the Parliament — Dec- 
laration for Indulgence — Objected to by the Commons — Act against 
Conventicles — Another of the same kind — Remarks on them — Dissat- 
isfaction increases — Private Life of the King — Opposition in Parliament 

— Appropriation of Supplies — Commission of Public Accounts — Decline 
of Clarendon's Power — Loss of the King's favor — Coalition against him 

— His Impeachm ent — Some Articles of it not unfounded — Illegal Ina- 
^isflii^ments — Sale ot TjunETfS'^'S'olicital'ion of Trench Money — His 
Faults as a Minister — His pusillanimous Flight — and consequent Ban- 

•ishment — Cabal Ministry — Scheme of Comprehension and Indulgence 

— Triple Alliance — Intrigue with France — King's Desire to be absolute 

— Secret Treaty of 1670 — Its Objects — Differences between Charles 
and Louis as to the mode of its Execution — Fresh severities against 
Dissenters — Dutch War — Declaration of Jl^p^i ^lgence — Opposed by 
Parliament — and withdrawn — Test Act — Fall of Shaftesbury and 
his Colleagues Page 68 

CHAPTER XII. 

Earl of Danby's Administration — Opposition in the Commons — Fre- 
quently corrupt — Character of Lord Danby — Connection of the popu- 
lar party with France — Its Motives on both Sides — Doubt as to their 
Acceptance of Money — Secret Treaties of the King with France — Fall 
of Danby — His Impeachment — Questions arising on it — His Commit- 
ment to the Tower — "Pardon pleaded in Bar — Votes of Bishops — 
Abatement of Impeachments by Dissolution — Popish Plot — Coleman's 
Letters — Godfrey's Death — Injustice of Judges on the Trials — Par- 
liament dissolved — Exclusion of Duke of York proposed ^ Schemes of 
Shaftesbury and Monmouth — Unsteadiness of the King — Expedients 
to avoid the Exclusion — Names of Whig and Tory — New Council 
formed by Sir William Temple — Long Prorogation of Parliament — 
Petitions and Addresses — Violence of the Commons — Oxford Parlia- 
ment — Impeachment of Commoners for Treason constitutional — Fitz- 
harris impeached — Proceedings against Shaftesbury and his Colleagues 

— Triumph of the Court — Forfeiture of Charter of London — and of 
other Places — Projects of Lords Russell and Sidney — Their Trials — 
High-Tory Principles of the Clergy — Passive Obedience — Some con- 
tend for absolute Power — Filmer — Sir George Mackenzie — Decree 
of University of Oxford — Connection with Louis broken off — King's 
Death 154 



CONTENTS OF THE SECOND VOLUME. Vll 

CHAPTER Xin. 

ON THE STATE OF THE CONSTITUTION UNDER CHARLES H. 

Eflfect of the Press — Restrictions upon it before and after the Restoration — 
Licensing Acts — Political Writings checked by the Judges — Instances 
of illegal Proclamations not numerous — Juries fined for Verdic ts — 
Question of their Right to return a general Verdict — Haheas Corpus 
Act j a i Med — Differences between Lords and Comnidiis — .fuilicial 
P'owers of the Lords historically traced — Their Preiensious aliout the 
Time of the Restoration — Resistance made by the Commons — Dispute 
about their original Jurisdiction — and that in Appeals from Courts of 
Equity — Question of the exclusive Right of the Commons as to Money 
Bills — Its History — The Right extended farther -^i State of the Upper 
House under the Tudors and Stuarts — Augmentation of the Temporal 
Lords — State of the Commons — Increase of their Members — Ques- 
tion as to Rights of Election — Four different Theories as to the original 
Principle — Their Probability considered* Page 221 

CHAPTER XIV. 

THE REIGN OF JAMES II. 

Designs of the King — Parliament of 1685 — King's intention to Repeal 
the Test Act — Deceived as to the Dispositions of his Subjects — Pro- 
rogation of Parliament — Dispensing Power confirmed by the Judges 

— Ecclesiastical Commission — King's Scheme of establishing Popery 

— Dismissal of Lord Rochester — Prince of Orange alarmed — Plan of 
setting the Princess aside — Rejected by the King — Overtures of the 
Malecontents to Prince of Orange — Declaration for Liberty of Conscience 

— Addresses ih favor of it — New-modelling of the Corporations — Affair 
of Magdalen College — Infatuation of the King — His Coldness towards 
Louis — Invitation signed to the Prince of Orange — Birth of Prince of 
Wales -yjustic§,-and_Necessity of the Revolution — Favorable Circum- 
stances attending it — Its salutary Consequences -V Proceedings of the 
Convention — Ended by the Elevation of William and Mary to the 
Throne 266 

CHAPTER XV. 

ON THE REIGN OF WILLIAM III. 

Declaration of Rights — Bill of Rights — Military Force without Consent 
declared illegal — Discontent with the new Government — Its Causes 

— Incompatibility of the Revolution with received Principles — Char- 
acter and Errors of William — Jealousy of the Whigs — Bill of Indem- 
nity — Bill for restoring Corporations — Settlement of the Revenue — 
Appropriation of Supplies — Dissatisfaction of the King — No RepulJ*» 



viii CONTEXTS OF THE SECOND VOLUME 

can Party in Existence — William employs Tories in Ministry — In. 
trigues with tLe late King — Schemes for his Restoration — Attainder of 
Sir John Fenwick — 111 Success of the War — Its Expenses — Treaty of 
Ryswick — Jealousy of the Commons — Army reduced — Irish Forfeit- 
ures resumed — Parliamentiiry Inquiries — Treaties of Partition — Im- 
provements in Constitution under William — Bill for Triennial Parlia- 
ments — Law of Treason — Statute of Edward III. — Its constructive 
Interpretation- Statute of William III. — Liberty of the Press — Law 
o f L,ib el — Religious Toleratioij — Attempt at Comprehension — Schism 
of the Nonjurors — Laws against Roman Catholics — Act of Settlem ent 

— LimitatioiM of Prerogative contained in it — Priv^iiumciLsuperaeded 
by a Gftbinet — Exclusion of Placemen and Pensioners from Parliament 

— Independence of Judges — Oath of Abjuration Page 316 

CHAPTER XVI. 

ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANIIB, 

GEORGE I., AND GEORGE II. 

Termination of Contest between the Crown and Parliament — Distinctive 
Principles of Whigs and Tories — Changes effected in these by Circum- 
stances — Impeachment of Sacheverell displays them again — Revolu- 
tions in the Ministry- under Anne — War of the Succession — Treaty of 
Peace broken off — Renewed again by the Tory Government — Argu- 
ments for and against the Treaty of Utrecht — The Negotiation mis- 
managed — Intrigues of the Jacobites — Some of the Ministers engage 
in them — Just Alarm for the Hanover Succession — Accession of George 
I. — Whigs come into Power — Great Disaffection in thi Kingdom — 
Impeachment of Tory Ministers — Bill for Septennial Parliaments — 
Peerage Bill — Jacobitism among the Clergj' — Convocation — its En- 
croachments — Hoadley — Convocation no longer suffered to sit — In- 
fringements of the Toleration by Statutes under Anne — They are re- 
pealed by the Whigs — Principles of Toleration fully established — 
Banishment of Atterbury — Decline of the Jacobites — Prejudices 
against the Reigning Family — Jealousy of the Crown — Changes in 
the Constitution whereon it was founded — Permanent Military Force — 
Apprehensions from it — Establishment of Militia — Influence over Par- 
liament bj' Places and Pensions — Attempts to restrain it — Place Bill of 
1743 — Secret Corruption — Commitments for Breach of Privilege — of 
Members for Offences — of Strangers for Offences against Slembers — or 
for Offences against the House — Kentish Petition of 1701 — Dispute 
with Lords about Aylesbury Election — Proceedings against Mr. Murray 
in 1751 — Commitments for Offences unconnected with the House — Priv- 
ileges of the House not controllable by Courts of Law — Danger of stretch- 
ing this too far — Extension of Penal Laws — Diminution of Personal 
Authority of the Crown — Causes of this — Partj- Connections — In- 
fluence of Political Writings — Publication of Debates — Increased In- 
fluence of the Middle Ranks 405 



CONTENTS OF THE SECOND VOLUME. Ls 

CHAPTER XVn. 

ON THE CONSTITUTION OF SCOTLAND. 

Early State of Scotland — Introduction of Feudal System — Scots Parlia- 
ment—Power of the Aristocracy — Royal Influence in Parliament — 
Judicial Power — Court of Session — Refoi-mation — Power of the 
Presbj-terian Clergy — Their Attempts at Independence on the State 
— Andrew Melville — Success of James VI. in restraining them — Es- 
tablishment of Episcopacy — Innovations of Charles I. — Arbitrary Gov- 
ernment — Civil War — Tyrannical Government of Charles II. —Reign 
of James VII. — Revolution and Establishment of Presbytery — Reign 
of William III. — Act of Security — Union — Gradual Decline of Jaco- 
bitism Page 504 

CHAPTER XVm. 

ON THE CONSTITUTION OF IRELAND. 

Ancient State of Ireland — Its Kingdoms and Chieftainships — Law of 
Tanistry and Gavelkind — Rude State of Society — Invasion of Henry 
H. — Acquisitions of English Barons — Forms of English Constitution 
established — Exclusion of native Irish from them — Degeneracy of 
English Settlers — Parliament of Ireland — Disorderly State of the Isl- 
and — The Irish regain Part of their territories — English Law con- 
fined to the Pale — Poyning's Law— Royal Authority revives under 
Henry VIII. — Resistance of Irish to Act of Supremacy — Protestant 
Church established by Elizabeth — Effects of this Measure — Rebellions 
of her Reign— Opposition in Parliament — xVrbitrary Proceedings of Sir 
Henry Sidney — James I. — Laws against Catholics enforced — English 
Law established throughout Ireland — Settlements of English in Munster, 
Ulster, and other Parts — Injustice attending them — Constitution of Irish 
Parliament — Charles I. promises Graces to the Irish — Does not confirm 
them — Administration of Strafford — Rebellion of 1641 — Subjugation 
of Irish by Cromwell — Restoration of Charles II. — Act of Settlement 
— Hopes of Catholics under Charles and James — War of 1689, and final 
Reduction of Ireland — Penal Laws against Catholics — Dependence 
of Irish on English Parliament — Growth of a patriotic party in 
1753 539 

f KDCX 601 



THE 

CONSTITUTIONAL HISTORY 

OF 

ENGLAND 

FKOM 

HENRY VII. TO GEORGE IL 



PART n. 

Ibolition of the Monarchy — and of the House of Lords — Commonwealth - 
Schemes of Cromwell — Uis Conversations with Whitelock — Unpopularity of 

the Parliament — Their Fall — Little Parliament — Instrument of Government 

Parliaiueut called by Cromwell — Dissolved by him — Intrigues of the King and 
his Party — Insurrectionary Movements in 1655 — Rigorous Measures of Cromwell 

— His Arbitrary Government — He summons another Parliament — Designs to 
take the Crown — The Project fails — but his Authority as Protector is aug- 
mented — He aims at forming a new House of Lords — His Death — and Char- 
acter — Richard, his Son, succeeds him — is supported by some prudent Men — 
but opposed by a Coalition — Calls a ParUament — The Army overthrow both — 
Long Parliament restored — Expelled again — and again restored — Impossi- 
bility of establishing a Republic — Intrigues of the Royalists — They unite with 
the Presbyterians — Conspiracy of 1659 — Interference of Monk — His Dissimula- 
tion — Secluded Members return to their Seats — Difficulties about the Restora- 
tion — New Parliament — King restored — Whether previous Conditions required 

— Plan of reviving the Treaty of Newport inexpedient — Difficulty of framing 
Conditions — Conduct of the Convention about this not blamable — except in 
Respect of the Mihtia — Conduct of Monk. 

The death of Charles I. was pressed forward rather 
Abolition through personal hatred and superstition than out 
of the of any notion of its necessity to secure a republi- 

monarc y, ^^^^ administration. That party was still so weak 
that the commons came more slowly, and with more differ- 
ence of judgment, than might be expected, to an absolute 
renunciation of monai'chy. They voted, indeed, that the 
people are, under God, the original of all just power ; and 
that whatever is enacted by the commons in parliament hath 
the force of law, although the consent and concurrence of the 
king or house of peers be not had thereto ; terms manifestly 
not exclusive of the nominal continuance of the two latter. 
They altered the public style from the king's name to that of 
the parliament, and gave other indications of their intentions; 
but the vote for the abolition of monarchy did not pass till 
the 7th of February, after a debate, according to Whitelock, 
but without a division. None of that clamorous fanaticism 
showed itself which, within the memory of many,^ produced, 
from a far more numerous assembly, an instantaneous decis- 
ion against monarchy. Wise men might easily perceive that 
the regal power was only suspended through the force of cir- 

1 1827. 



Commonwealth. AND OF THE HOUSE OF LOPJ)S. 3 

cumstances, not abrogated by any real change in public opin- 
ion. 

The house of lords, still less able than the crown to with- 
stand the inroads of democracy, fell by a vote of ^^^ ^j. ^^^ 
the commons at the same time. It had continued house of 
during the whole progress of the war to keep up '°'"'**' 
as much dignity as the state of affairs would permit; tena- 
cious of small privileges and offering much temporary oppo- 
sition in higher matters, though always receding in the end 
from a contention wherein it could not be successful. The 
commons, in return, gave them respectful language, and dis- 
countenanced the rude innovators who talked against the 
rights of the peerage. They voted, on occasion of some ru- 
mors, that they held themselves obliged, by the fundamental 
laws of the kingdom and their covenant, to preserve the peer- 
age with the rights and privileges belonging to the house of 
peers, equally with their own.^ Yet this was with a secret 
reserve that the lords should be of the same mind as them- 
selves. For, the upper house having resented some words 
dropped from sir John Evelyn, at a conference concerning 
the removal of the king to "Warwick castle, importing that the 
commons might be compelled to act without them, the com- 
mons, vindicating their member as if his words did not bear 
that interpretation, yet added, in the same breath, a plain 
hint that it was not beyond their own views of what might 
be done : " hoping that their lordships did not intend by their 
inference upon the words, even in the sense they took the 
same, so to bind up this house to one way of proceeding as 
that in no case whatsoever, though never so extraordinary, 
though never so much importing the honor and interest of 
the kingdom, the commons of England might not do their 
duty, for the good and safety of the kingdom, in such a way 
as they may, if they cannot do it in such a way as they 
would and most desire." ^ 

After the violent seclusion of the constitutional party from 
the house of commons, on the 6th of December, 1648, very 
few, not generally more than five, peers continued to meet. 
Their number was suddenly increased to twelve on the 2d 
of January, when the vote of the commons, that it is high- 

1 Pari. Hist. 349. The council of war and sir William Waller's Vindication, 

more than once, in the year 1647, de- IM. 

clared their intention of prtserving the 2 Commons' Journal, 13th aud 19tli 

rights of the peerage. Whitelock, 288; May, 1646. 



4 MEETING OF PEERS. Chap. X. 

treason in the king of England for the time being to levy war 
against parliament, and the ordinance constituting the high 
court of justice, were sent up for their concurrence. These 
were unanimously rejected with more spii-it than some, at 
least, of their number might be expected to display. Yet, as 
if apprehensive of giving too much umbi-age, they voted at 
tlieir next meeting to prepare an ordinance, making it 
treasonable for any future king of England to levy war 
against the parliament — a measure quite as unconstitutional 
as that they had rejected. They continued to hnger on the 
verge of annihilation during the month, making petty orders 
about writs of error, from four to si^: being present ; they 
even met on the 30th of January. On the 1st of February, 
six peers forming the house, it was moved, "that they would 
take into consideration the settlement of the government of 
England and Ireland, in this present conjuncture of things, 
upon the death of the king ; " and ordered that these lords 
following (naming those present and three more) be ap- 
pointed to join with a proportionable number of the house of 
commons for that purpose. Soon after, their speaker ac- 
quainted the house that he had that morning received a 
letter from the earl of Northumberland, " with a paper 
enclosed, of very great concernment;" and for the present 
the house ordered that it should be sealed up with the 
speaker's seal. This probably related to the impending dis- 
solution of their house, for they found next day that their 
messengers sent to the commons had not been admitted. 
They persisted, however, in meeting till the 6th, when they 
made a trifling order, and adjourned " till ten o'clock to- 
morrow." ^ That morrow was the 25th April, 1660. For 
the commons having the same day rejected, by a majority of 
forty-four to twenty-nine, a motion that they would take the 
advice of the house of lords in the exercise of the legislative 
power, resolved that the house of peers was useless and 
dangerous, and ought to be abolished.^ It should be noticed 

1 Lords' Journals. thirty-one to eighteen that " a message 
3 Commons' Journals. It had been from the lords should be receiyed ; " 
proposed to continue the house of lords Cromwell strongly supporting the mo- 
as a court of judicature, or as a court of tion, and being a teller for it ; and again 
consultation, or in some way or other to on Jan. 18, when, the opposite party pre- 
keep it up. The majority, it will be ob- vailing, it was negatived by twenty-five 
served, was not very gi-eat ; so far was the to eighteen to ask their assent to the vi>te 
democratic scheme from being universal of the 4th instant, that the sovereignty 
even within the house. Whitelock. 377. resides in the commons ; which, doubt- 
Two divisions had already taken place : less, if true, could not require the lords" 
one on Jan. 9, when it was carried by concurrence. 



Commonwealth. COMMONWEALTH. 5 

that there was no intention of taking away the dignity of 
peerage ; the lords, throughout the whole duration of the 
commonwealth, retained their titles, not only in common 
usage, but in all legal and parliamentary documents. The 
earl of Pembroke, basest among the base, condescended to 
sit in the house of commons as knight for the county of 
Berks, and was received, notwithstanding his proverbial 
meanness and stupidity, with such excessive honor as dis- 
played the character of those low-minded upstarts who 
formed a sufficiently numerous portion of the house to give 
their tone to its proceedings.^ 

Thus by military force, with the approbation of an incon- 
ceivably small proportion of the people, the king common- 
was put to death, the ancient fundamental laws wealth, 
were overthrown, and a mutilated house of commons, wherein 
very seldom more than seventy or eighty sat, was invested 
with the supreme authority. So little countenance had these 
late proceedings, even from those who seemed of the ruling 
faction, that, when the executive council of state, consisting 
of forty-one, had been nominated, and a test was proposed to 
them, declaring their approbation of all that had been done 
about the king and the kingly office and about the house of 
lords, only nineteen would subscribe it, though there were 
fourteen regicides on the list.'^ It was agi-eed at length that 
they should subscribe it only as to the future proceedings of 
the commons. With such dissatisfaction at head-quarters 
there was little to hope from the body of the nation." Hence, 
when an engagement was tendered to all civil officers and 
beneficial clergy, containing only a promise to live faithful to 
the commonwealth, as it was established without a king or 
house of lords (though the slightest test of allegiance that 
any government could require), it was taken with infinite re- 
luctance, and, in fact, refused by very many, the presbyterian 

1 Whitelock, 396. They voted that out two of the former list, besides those 
Pembroke, as well as Salisbury and How- who were dead. Whitelock, 441. la 
»rd of E.serick, who followed the ignomin- 1651 the change was more considerable, 
lous example, should be added to all Id. 488. 

committees. 8 Six judges agreed to hold on their 

2 Commons' Journals. Whitelock. It commissions — six refused. Whitelock, 
had been referred to a committee of five who makes a poor figure at this time on 
members, Lisle, Holland, Robinson, Scott, his own showing, consented to act still as 
and Ludlow, to recommend thirty -five for commissioner of the great seal. Those 
ft council of state ; to whose nominations who remained in office affected to stipu- 
the house agreed, and added their own. late that the fundamental laws should 
Ludlow, i. 288. They were appointed for not be abolished ; and the house passed a 
ft year; but in 1650 the house only eft vote to this effect Whitelock, 378. 



6 SCHEMES OF CROMWELL. Chap. X. 

ministers especially showing a determined averseness to the 
new republican organization.* 

This, however, was established (such is the dominion of 
the sword) far beyond the control of any national sentiment. 
Thirty thousand veteran soldiers guaranteed the mock parlia- 
ment they had permitted to reign. The sectaries, a numerous 
body, and still more active than numerous, possessed, under 
the name of committees for various purposes appointed by 
the house of commons, the principal local authorities, and 
restrained by a vigilant scrutiny the murmurs of a disaffected 
majority. Love, an eminent presbyterian minister, lost his 
head for a conspiracy by the sentence of a high court of 
justice, a tribunal that superseded trial by jury.^ His death 
struck horror and consternation into that arrogant priesthood 
who had begun to fancy themselves almost beyond the scope 
of criminal law. The cavaliers were prostrate in the dust, 
and, anxious to retrieve something from the wreck of their 
long-sequestered estates, had generally little appetite to embark 
afresh in a hopeless cause ; besides that the mutual animos- 
ities between their party and the presbyterians were still too 
irreconcilable to admit of any sincere cooperation. Hence 
neither made any considerable effort in behalf of Charles on 
his march, or rather flight, into England : a measure, indeed, 
too palpably desperate for prudent men who had learned 
the strength of their adversaries, and the great victory of 
Worcester consummated the triumph of the infant common- 
wealth, or rather of its future master. 

A train of favoring events, more than any deep-laid policy. 
Schemes of had now brought sovereignty within the reach of 
CromweU. Cromwell. His first schemes of ambition may 
probably have extended no farther than a title and estate, 
with a great civil and military command in the king's name. 
Power had fallen into his hands because they alone were fit 
to wield it ; he was taught by every succeeding event his 
OAvn undeniable superiority over his contemporaries in mar- 

1 Whitelock, 444, et alibi. Baxter's the device of those who rule in revolu- 
Life, 64. A committee was appointed, tions. Clarendon speaks, on the contra- 
April, 1649, to inquire about ministers ry, of Love's execution triumphantly, 
who asperse the proceedings of parliament He had been distinguished by a violent 
in their pulpits. Whitelock, 395. sermon during the treaty of Uxbridge, for 

2 state Trials, v. 43. Baxter says that which the parliament, on the complaint 
Love's death hurt the new commonwealth of the king's commissioners, put him iu 
more than would be easily believed, and confinement. Thurloe,). 65; State Trials, 
niade it odious to all the religious party 201. Though the noble historian, as 
in the land, except the sectaries. Life of usual, represents this otherwise. He also 
B., 67. But " oderint dum metuant " is misstat-es Love's dying speech. 



JoMMON WEALTH. DISCOURSE WITH WHITELOCK. 7 

tial renown, in civil prudence, in decision of character, and 
in the pnbHc esteem which naturally attached to these quali- 
ties. Perhaps it was not till after the battle of Worcester 
that he began to fix his thoughts, if not on the dignity of 
royalty, yet on an equivalent rigiit of command. Two re- 
markable conversations, in which Whitelock bore 
a part, seem to place beyond controversy the nature versaUoiw 
of his designs. About the end of 1651, Whitelock !!|''?, , ^ 
himself, St. John, Widdrington, Lenthall, Harri-^on, 
Desboroiigh, Fleetwood, and Wiialley, met Cromwell, at hi 
own request, to consider the settlement of the nation. The 
four former were in favor of monarchy, Whitelock inclining 
to Charles, AViddrington and othei's to the duke of Glouces- 
ter ; Desborough and Whalley were against a single person's 
government, and Fleetwood uncertain. Cromwell, who had 
evidently procured this conference in order to sift the inclina- 
tions of so many leading men, and to give some intimation of 
his own, broke it up with remarking that, if it might be done 
with safety and preservation of their rights as Englishmen 
and Christians, a settlement of somewhat with monarchical 
power in it would be very effectual.^ The observation he 
here made of a disposition among the lawyers to elect the 
duke of Gloucester, as being exempt by his youth from the 
prepossessions of the two elder brothers, may, perhaps, have 
put Cromwell on releasing him from confinement, and send- 
ing him to join his family beyond sea.'^ 

Twelve months after this time, in a more confidential dis- 
course with Whitelock alone, the general took occasion to 
complain both of the chief officers of the army and of the 
parliament ; the first, as inclined to factious murmurings, and 
the second, as engrossing all offices to themselves, divided 
into parlies, delaying business, guilty of gross injustice and 
partiality, and designing to perpetuate their own authority. 

1 ■\rhiteIock, 516. idea that they might one day make us« 
* The p;irliauieut had resolTed, 24th of him, is hard to say. Olarendon men- 
July, 1050, that Henry Stuart, son of the tions the scheme of making the duke of 
Ate king, and tlie lady EliMbeth. daugh- Gloucester kiug, in one of his lettei-s (iii. 
ter of the lat*" king, be removed forthwith 38, 11th Nov. Itiol); but says, " Truly 1 
beyoud the seas out of the limit! of this do believe that Cromwell might as easily 
commonwealth. Yet this intention seems procure himself to be chosen king as the 
to have been soon changed; for it is re- duke of Gloucester; for, as none of the 
solved, Sept. 11, to give the duke of king's party would assist the la-st, so I 
Gloucester loOOl. per annum for his am persuaded both presbj terians and 
maintenance so long a.s he should behave independents would have much sooner 
himself inoffensively. Whether this pro- the former than any of the race of him 
eeeded fi-om lit)eraLlity, or from a vague whom they have murthered." 
VOL. II. — c. 2 



8 UNPOPULARITY OF THE PARLIAMENT. Chap. X 

Whitelock, confessing part of this, urged that, having taken 
corainissions from them as the supreme power, it would be 
difficult to find means to restrain them. " What," said Crom- 
well, " if a man should take upon him to be king ? " "I 
think," answered Wliitelock, " that remedy would be worse 
than the disease." " Why," rejoined the other, " do you think 
so?" He then pointed out that the statute of Henry VII. 
gave a security to those who acted under a king which no 
other government could furnish ; and that the reverence paid 
by the people to that title would serve to curb the extrava- 
gancies of those now in power. Whitelock replied, that their 
friends having engaged in a persuasion, though erroneous, 
that their rights and liberties would be better preserved 
under a commonwealth than a monarchy, this state of the 
question would be wholly changed by Cromwell's assumption 
of the title, and it would become a private controversy be- 
tween his family and that of the Stuarts. Finally, on the 
other's encouragement to speak fully his thoughts, he told 
him " that no expedient seemed so desirable as a private 
treaty with the king, in which he might not only provide for 
the security of his friends and the greatness of his family, 
but set limits to monarchical power, keeping the command of 
the militia in his own hands." Cromwell merely said " that 
such a step would require great consideration ; " but broke 
off with marks of displeasure, and consulted Whitelock 
much less for some years afterwards.^ 

These projects of usurpation could not deceive the watch- 
fulness of those whom Cromwell pretended to serve. He 
had on several occasions thrown off enough of his habitual 
dissimulation to show the commonwealth's men that he was 
theirs only by accident, with none of their fondness for re- 
Unpopu- publican polity. The parliament in its present 
larity of the wreck contained few leaders of superior ability, 
parliament. ^^^ ^ natural iustiuct would dictate to such an 
assembly the distrust of a popular general, even if there had 
been less to alarm them in his behavior.- They had no 

1 Id. p. 548. Lord Orrery told Burnet certain, liowever, that such a compromise 

that he had once mentioned to Cromwell would have been dishonorable for one 

* report that he was to bring in the king, party, and infamous for the other, 

who should marry his daughter, and olj- - Cromwell, in his letter to the par- 

eerved that he saw no better expedient, liament, after the battle of Worcester, 

Cromwell, without expressing any dis- called it a crowning mercy. This, 

pleasure, said, " The king cannot forgive though a very intelligible expression, 

his father's blood," which the other at- was taken in an invidious' sense by th« 

tempted to answer. Burnet, i. So. It is republicans. 



Commonwealth. STATE OF PARTIES. 9 

means, however, to withstand him. The creatures themselves 
of military force, their pretensions to direct or control the 
army could only move scorn or resentment. Their claim to 
a legal authority, and to the name of representatives of a 
people who rejected and abhorred them, was perfectly impu- 
dent. When the house was fullest their numbers did not 
much exceed one hundred ; but the ordinary divisions, even 
on subjects of the highest moment, show an attendance of but 
fifty or sixty members. They had retained in their hands, 
notwithstanding the appointment of a council of state, most 
of whom were from their own body, a great part of the exec- 
utive government, especially the disposal of offices.^ These 
they largely shared among themselves or their dependants ; 
and in many of their votes gave occasion to such charges of 
injustice and partiality as, whether true or false, will attach 
to a body of men so obviously self-interested.'^ It seems to 
be a pretty general opinion that a popular assembly is still 
more frequently influenced by corrupt and dishonest motives 
in the distribution of favors or the decision of private affairs 
than a ministry of state ; whether it be that it is more prob- 
able that a man of disinterestedness and integrity may in the 
course of events rise to the conduct of government than that 
such virtues should belong to a majority ; or that the clandes- 
tine management of court corruption renders it less scanda- 

1 Journals, pa.'ssim. one .Tosiah Primatt, who .seems to haye 

2 One of their most scandalous acts been connected with Lilburne, AVildman, 
was the sale of the earl of Craven's and the levellers, having presented a 
estate. He had been out of Kngland petition conipliiining that sir Arthur 
during the war, and could not therefore Ilaslerig h;i,l violently dispossessed him 
be reckoned a delinquent. But evidence of some collieries, the house, after voting 
was offered that he had seen the king in every part of the petition to be false, 
Holland ; and upon this charge, thouffh acjjudged him to pay a fine of 3000/. to 
he petitioned to be heard, and, as is said, the commonwealth, 2000/. to Haslerig, 
indicted the informer for perjury, where- and 2000/. more to the commissioners 
of he was convicted, they voted by 33 to for compositions. .Journals, 1.5th .Jan. 
81 that his lands should be sold ; Has- l(i51-2. There had been a project of 
lerig, the most savage zealot of the whole erecting an university at Durham, in 
faction, being a teller for the ayes, Va-ie fivor of which a committee reported 
for the noes. Journals, Cth March, (18th June, 1B51), and for which th« 
16.51. and 22d June, 1652; State Trials, chapter-lands would have made a com- 
V. 323. On the 20th of July iu the same petent endowment. Haslerig, however, 
year it was referred to a committee to !r"t most of them into his own h.ands, 
select thirty delinquents whose esttites and thus frustrated, perhaps, a design 
8hould he sold for the use of the navy, of great import.ance to education and 
Thus, long after the cessation of hos- literature in this country. For had an 
tihty, the royalists continued to stand university once been established, it ia 
in jeopardy, not only collectively but just possible, though not very likely, 
personally, from this arbitr;iry and vin- that the estates would not have reverted, 
dictive faction. Nor were these qualities on the king's restoration, to their former, 
displayed against the royalists alone ; but much less useful, possessors. 



10 STATE OF PARTffiS. Chap. X. 

lous and more easily varnished than the shamelessness of par- 
liamentary iniquity. 

The republican interest in the nation was almost wholly 
composed of two parties, both offshoots deriving strength from 
the great stock of the army ; the levellers, of whom Lilburne 
and Wildraan are the most known, and the anabaptists, fifth- 
monarchy men, and other fanatical sectaries, headed by Har- 
rison, Hewson, Overton, and a great number of officers. 
Though the sectaries seemed to build their revolutionary 
schemes more on their own religious views than the levellers, 
they coincided in most of their objects and demands.^ An 
equal representation of the people in short parliaments, an 
extensive alteration of the common law, the abolition of 
tithes, and indeed of all regular stipends to the ministry, a 
full toleration of religious worship, were reformations which 
they concurred in requiring as the only substantial fruits 
of their arduous struggle.^ Some among the wilder sects 
dreamed of overthrowing all civil institutions. These factions 
were not without friends in the commons. But the greater 
part were not inclined to gratify them by taking away the 
provision of the church, and much less to divest themselves 
of their own authority. They voted indeed that tithes siiould 
cease as soon as a competent maintenance should be other- 
wise provided for the clergy.' They appointed a commission 
to consider the reformation of the law, in consequence of 
repeated petitions against many of its inconveniences and 
abuses ; who, though taxed of course with dilatoriness by the 
ardent innovators, suggested many useful improvements, sev- 

1 Mrs. Hutchinson speaks very favor- pious, and public spirit wliicli they pro- 

ahly of the levellers, as they appeared fessed, owned them and protected them 

about 1647, declaring against the fac- as far as he had power. These were they 

tions of the presby terians and indepen- who first began to discover the ambition 

dents, and the ambitious views of their of lieut.-gen. Cromwell and his idolaters, 

leaders, and especially against the unrea- and to suspect and dislike it." P. 285. 

sonable privileges claimed by the houses 2 Whitelock, 399, 401. The levellers 

of parliament collectively and personally, rose in arms at Banbury and othei 

" Indeed, as all virtues are mediums and places, but were soon put down, chiefly 

haTe their extremes, there rose up after through the energj' of Cromwell, and 

in that house a people who endeavored their lingleaders shot, 

the levelling of all estates and quaUtjes, ■> It was referred to a committee, 29th 

which those sober levellers were never April, 1642, to consider how a convenient 

guilty of desiring; but were men of just and competent maintenance for a godly 

and sober principles, of honest and relig and able ministry may be settled, in lieu 

ous ends, and were therefore hated by of tithes. A proposed addition, that 

nil the designing self-interested men of tithes be p.aid as before, till such main- 

both factions. Colonel Hutchinson had tenance be settled, was carried by 27 f« 

a great intimacy with many of these ; and 17. 
■o iar as they vted according to the just. 



Commonwealth. FALL OF THE LONG PARLIAMENT. 11 

eral of which have been adopted in more regular times, 
though with too cautious delay.^ Tliey proceeded ratlier 
slowly and reluctantly to frame a scheme for future parlia- 
ments ; and resolved that they should consist of 400, to be 
chosen in due proportion by the several counties, nearly upon 
the model suggested by Lilburne, and afterwards carried into 
effect by Cromwell.^ 

It was with much delay and difficulty, amidst the loud 
murmurs of their adherents, that they could be 
brought to any vote in regard to their own dissolu- 
tion. It passed on November 17, 1651, after some very close 
divisions, that they should cease to exist as a parliament on 
November 3, 1654.^ The republicans out of doors, who 
deemed annual, or at least biennial, parliaments essential to 
their definition of liberty, were indignant at so unreasonable 
a prolongation. Thus they forfeited the good-will of the only 
party on whom they could have relied. Cromwell dexterous- 
ly aggravated their faults : he complained of their delaying 
the settlement of the nation ; he persuaded the fanatics of 
his concurrence in their own schemes ; the parliament, in 
turn, conspired against his power, and, as the conspiracies of 
so many can never be secret, let it be seen that one or other 
must be destroyed — thus giving his forcible expulsion of 
them the pretext of self-defence. They fell with no i-egret, 
or rather with much joy of the nation, except a few who 

1 Journals, 19th Jan. 1652. Ilale was till Oct. 11th, when the committee waa 
the first named on this commission, and ordered to meet next day, and so de die 
took an active part: but he was associ- in diem, and to give an account thereof 
ated with some furious levellers, Desbo- to the house on Tuesday come fortnight; 
rough, Tomlinson, and Hugh Peters, so all that came to have voices, but the 
that it is hard to know how far he con- special care thereof commended to sir 
curred in the alterations suggested. Henry Vane, colonel Ludlow, and Mr. 
Many of them, however, seem to bear llobinson. V.'e find nothing further till 
marks of his hand. W'hitelock, 475, Jan. 3d, 1650, when the committee is 
517, 519, 820 et alibi. There had been ordered to make its report the next 
previously a committee for the same Wednesday. This is done accordingly, 
purpose in 1650. See a list of the acts Jan. 9, when sir H. Vane reports the 
prepared by them in Somers Tracts, vi. resolutions of the committee, one of 
177 ; several of them are worthy of at- which was, that the number in fiitura 
tention. Ludlow, indeed, blames the parliaments should be 400. This was 
commission for slowness ; hut their delay carried, after negativing the previous 
Bcems to have been very justifiable, and question in a committee of the whole 
their suggestions liighly valuable. It hou.se. They proceeded several days 
sven appears that they drew up a book afterwards on the same business. See 
containing a regular digest or code, also Ludlow, pp. 313, 435. 

which was ordered to be printed. Jour- 3 Two divisions had taken place. Nov. 

nals, 20th ^an. 1653. 14 (the first on the previous question), 

2 \ committee was named, 15th M.ay, on a motion that it is couvenient to de- 
1649, to tiike into consideration the set- clare a certain time for the continuanet 
tling of the succession of future parha- of this parliament, 60 to 46, anrl 49 to 47 
ments and regulating their elections. On tiie last division Cromwell ami S* 
Nothing more appears to have been done John were tellers for the aye». 



12 THE LITTLE PARLIAMENT. Chap. X. 

dreaded more from the alternative of military usurpation or 
anarchy than from an assembly which still retained the names 
and forms so precious in the eyes of those who adhere to the 
ancient institutions of their country.^ 

It was now the deep policy of Cromwell to render himself 
Littif par- the sole refuge of those who valued the laws, oi 
lijuneut. the regular ecclesiastical ministry, or their own 
estates, all in peril from the mad enthusiasts who were in 
hopes to prevail." These he had admitted into that motley 
convention of one hundred and twenty persons, sometimes 
called Barebone's parhament, but more commonly the little 
Instrument Parliament, on whom his council of otficers pre- 
of govern- tended to devolve the a:overnment, minjrlin"- them 
With a sumcient proportion of a superior class 
whom he could direct.^ This assembly took care to avoid 
the censure which their predecessors had incurred, by pass- 
ing a good many bills, and applying themselves with a 
vigorous hand to the reformation of what their party deemed 
the most essential grievances, those of the law and of the 
church. They voted the abolition of the court of chancery, 
a measure provoked by its insufferable delay, its engrossing 

! Whitelock was one of these ; and, and possess it." Ludlow argued against 
being at that time out of Cromwell's him; but what was argument to such a 
favor, inveighs much against this de- head? Mem. of Ludlow, p. 565. Not 
struction of the power from which he many months after, Cromwell sent hia 
had taken his commission. P. 552, 554. coadjutor to Carisbrook castle. 
St. Johij appears to have concurred in 3 Hume speaks of this assembly aa 
the measure. In fact there had so long chiefly composed of the lowest mechanics, 
been an end of law that one usurpation But th\s was not the case. Some persons 
might seem as riglitful as another. But of inferior rank there were, but a large 
while any house of commons remained proportion of the members were men of 
there was a stock left from which the an- good femily, or, at least, military distinc- 
sienc constitution might possibly germi- tion, as the list of the nauses in the Par- 
nate. Mrs. Macaulay, who.se lamenta- liamentary History is sufficient to prove, 
tions over the Rump did not certainly and Whitelock remarks, " It was much 
proceed from tliis cause, thus vents her wondered at by some that these gentlfr 
wrath on the English nation: -'An ac- men, many of them being persons ot 
quiescence thus universal in the insult fortune and knowledge, would at thi« 
comniittid on the guardians of the infant summons, and from those hands, take 
republic, and tlie first step towards the upon them the supreme authority of this 
usurpationof Cromwell, fixes an indelible nation."' P. 5.i9. Withresperttothis.it 
stain on the character of the English, as may be ob.scrved that those who have 
a people basely and incorrigibly attached lived in revolutions find it almost neces- 
to the sovereignty of individuals, and of sary, whether their own interests or those 
natures too ignoble to endure an empire of their country are their aim, to comply 
of eriual laws." Vol. v. p. 112. with all changes, and take a greater part 

- Harrison, when Ludlow asked him in supporting them than men of intlex- 

why he had joined Cromwell to turnout jble consciences can approve. No one 

the parliament, said, he thought Crom- felt this more than Whitelock ; and his 

well would own and favor a set of men remark in this place is a satire upon all 

who acted on higher principles than tho.se his conduct. He was at the moment dis- 

of civil liberty; and quoted from D.iniel, satisfied, and out of CromweU's favor, bu« 

that the saints shall take the kingdom lost no time in regaining it. 



Commonwealth. CROMWELL PROTECTOR. 13 

of almost all suits, and the uncertainty of its decisions. They 
appointed a committee to consider of a new body of the law, 
without naming any lawyer upon it.^ They nominated a 
set of commissioners to preside in courts of justice, among 
whom they with difficulty admitted two of that profession ;^ 
they irritated the clergy by enacting that marriages should 
be solemnized before justices of the peace ; ' they alarmed 
them still more by manifesting a determination to take •Awny 
their tithes, without security for an equivalent maintenance. 
Thus, having united against itself these two powerful bodies, 
whom neitiier kings nor parliaments in England have in 
general offended with impunity, this little synod of legislators 
was ripe tor destruction. Their last vote was to negative a 
report of their own committee, recommending that such as 
should be approved as preachers of the gospel should enjoy 
\he maintenance already settled by law; and that the pay- 
ment of tithes, as a just property, should be enfoi'ced by the 
magistrates. Tiie house having, by the majority of two, dis- 
agreed with this report,^ the speaker, two days after, having 
secured a majority of those present, proposed the surrender 
of (heir power into tlie hands of Cromwell, who put an end 
to the op})osition of the rest by turning them out of doors 

It can admit of no doubt that the despotism of a '.vise man 
is more tolerable than that of political or religious fanatics j 
and it rarely happens that there is any better remedy in 
revolutions which have given the latter an ascendant. Crom- 
well's assumption, therefore, of the title of protector was a 
necessary and wholesome usurpation, however he may have 

1 .Tcurnals. August 19. This was car- mission for amendment of the law ap- 
lied by 46 to 33 iigainst Cromwell's party pointed in the long parliament. The great 
Yet Cromwell, two years ufterwariis, pub- number of di.sseiiters from the established 
lished an ordinance for regulati ig and religion rendered it a very reasonable 
limiting the jurisdiction of chancery, measure, 
which offended Whitelock so much that * Tliurloe, i. 369[ iii. 132. 
he resigned the great seal, not having 6 .Journals, 2d and 10th Dec li)53. 
been consulu-d in framing the regula- Whitelock. See the sixth volume nl the 
tiotis. This is a rare instance in his life ; Somers Tracts (p. 2(36) for a long and 
and he vaunts much of his conscience rather able vindication of this parliament 
accordingly, but thankfully accepted the by one of its members. Ludlow also 
office of conimis.'iiouer of the treasury in- speak.s pretty well of it, p. 4("1 ; and 
Btead. P. 621, 625. lie does not seem, .says truly enough that Cromwell fright- 
by his own account, to have given much ened the lawyers and clergy, by showing 
satisfaction to suitors in eijuity (p. 548); what the p;irliament meant to do with 
yet the fault may have beeu theirs, or them, which made them in a hurry to 
the system's. have it destroyed. See also Pari. Hist. 

» 4th October. 1412, 1414. 

• This had beeu proposed by the com- 



14 MODE OF HIS ASCENT. Chap. X 

caused the necessity ; it secured the nation from the mischiev- 
ous hinacy of the anabaptists, and from the more cool-blooded 
tyranny of that little oligarchy which arrogated to itself the 
name of commonwealth's men. Though a gross and glaring 
evidence of tlie omnipotence of the army, the instrument 
under whioh he took his title accorded to him no unnecessary 
executive authority. The sovereignty still resided in the 
parliament ; he had no negative voice on their laws. Until 
the meeting of the next parliament a power was given him 
of making temporary ordinances ; but this was not, as Hume, 
on the authority of Clarendon and Warwick, has supposed, 
and as his conduct, if that were any proof of the law, might 
lead us to infer, designed to exist in future intervals of the 
legislature.' It would be scarcely worth while, however, to 
pay much attention to a form of government which was so 
little regarded, except as it mariis the jealousy of royal 
power, which those most attached to Cromwell, and least 
capable of any proper notions of liberty, continued to enter- 
tain. 

In the ascent of this bold usurper to greatness he had suc- 
cessively employed and thrown away several of the power- 
ful factions who distracted the nation. He had encouraged 
the levellers and persecuted them; he had flattered the long 
parliament and betrayed it ; he had made use of the secta- 
ries to crush the commonwealth ; he had spurned the secta- 
ries in his last advance to power. These, with the royalists 
and the presbyterians, forming in effect the whole people, 
though too disunited for such a coalition as must have over- 
thrown him, were the perpetual, irreconcilable enemies of his 
administration. Master of his army, which he well knew 
how to manage, surrounded by a few deep and experienced 
counsellors, furnished by his spies with the completest intelli- 
gence of all designs against him, he had no great cause of 

1 See the instrument of government before (id. 591), besides many other ordi- 

In Whitelock, p. 571 ; or Sorners Tracts, nances of a legislative nature. '• I am 

vi. 257. Ludlow says that some of the very glad," says Fleetwood (Feb. 1655, 

officers opposed this; but Lambert forced Thurloe, iii. 183), " to hear his highness 

it down their throats : p. 276. Cromwell has declined the legislative power, which 

made good use of this teuiporar}' power, by the instrument of governu-.eiit. in my 

The union of Scotland with England was opinion, he could not exercise after this 

by one of these ordinances, April 12 last parliament's meeting." Andthepar- 

(Whitelock, 586); and he imposed an liament of 1656, at the protector's desire, 

ttssessmentof 120.000/. monthly, for three confirmed all ordinances made since the 

months, and 90,000/. for tbe next three, dissolutionof the long parliament. Thur 

Instead of 70,000/. which had been paid loe, vi. 243. 

/ 



Commonwealth. PARLIAMENT CALLED BY CROMWELL. 15 

alarm from open resistance. But he was bound by the in* 
strument of government to call a parliament ; ami parliament 
in any parliament his adversaries must be formi- caiit-a by 
dable. He adopted in both those which he sum- '''""^*' 
moned the reformed model already determined ; limiting the 
number of representatives to 400, to be chosen partly in the 
counties, according to their wealth or supposed population, by 
electors possessing either freeholds or any real or movable 
property to the value of 200/. ; ])artly by the more considera- 
ble boroughs, in whose various rights of election no change 
appears to have been made.^ This alteration, comformable 
to the equalizing principles of the age, did not produce so 
considerable a ditference in the persons returned as it per- 
haps might at present.'' The court party, as those subservi 
ent to him were called, were powerful through the subjection 
of the electors to the army. But tlu'y were nut able to ex- 
clude the presbyterian and i-epublican interests; the latter, 
headed by Bradshaw, Ha^lerig, and Scott, eager to thwart , 
the power which they were compelled to obey.^ Hence they 
began by taking into consideration the whole instrument of 
government ; and even resolved themselves into a committee 
to debate its leading article, the protector's authority. Crom- 
well, his supporters having lost this question on a division of 
141 to 136, thought it time to interfere. He gave tliera to 
understand that the government by a single person and a 
parliament was a fundamental principle, not subject to their 
discussion ; and obliged every member to a recognition of it, 
solemnly promising neither to attempt nor to concur in any 
alteration of that article.* Tlie commons voted, however, 
that this recognition should not extend to the entire instru- 
ment, consisting of Ibrty-two articles ; and went Dissolved 
on to discuss them with such heat and prolixity ^y wm. 

1 I infer this from tlie report of a com- judge what the authority of the lord 
iiiittve of privileges on the election for protector will be in this parliament. 
Lynn. Oct. 20. 1666. See also Journals, However it was observed that, as often 
Nov. 26, 1654. as lie spoke in his speecii of liberty or 

2 It is remarkable that Clarendon religion, the members did seem to rejoice 
seems to approve this model of a parli.a- with acclamations of joy." Thurloe, v. 
ment, Siiyiog, "'it w.as then generally 588. But the election of Lenthall appeart 
looked upon as an alteration fit to be by Ouibbon Goddard's .lournal, lately 
more warrantably made, and in a better published in the Introduction to Bur- 
Hme." ton's Diary, to have been un.iiiinious. 

3 Bourdeaux, the French amba.s,sador, < Journals, 14th and 18tli Sept. Pari 
says, " Some were for Bradshaw as speJik- Hist. 144.5. 1459. Whitelork, t505, &* 
er, but tlie protector's party carried it Ludlow, 499. Goddard's Journal, 32. 
for Lenthall. By this beginning one may 



16 \ ROYALIST INTRIGUES. Chap. X. 

that, after five months, the limited term of their session, the 
protector, having obtained the ratification of his new scheme 
neither so fully nor so willingly as he desired, particularly 
having been disappointed by the great majority of 200 to GO, 
which voted the protectorate to be elective, not hereditary, 
dissolved the parliament with no small marks of dissatisfac- 
tion.^ 

The banished king, meanwhile, began to recover a little of 
Intrigues of ^^''^^ political importance which the battle of Wor- 
the king aud cester had seemed almost to extinguish. So ill-sup- 
ib party. poi-fed by his English adherents on that occasion so 
incapable, with a better army tlian he had any prospect of ever 
raising again, to make a stand against tlie genius and fortune of 
the usurper, it was vain to expect that he could be restored 
by any domestic insurrection, until the disunion of the pre- 
vailing factious should offer some more favorable opportu- 
nity. But this was too distant a prospect for his court of 
starving followers. He had from the beginning looked around 
for foreign assistance. But France was distracted by her own 
troubles ; Spain deemed it better policy to cultivate the new 
commonwealth ; and even Holland, though engaged in a dan- 
gerous war with England, did not think it uorLh while to 
accept his offer of joining her fleet, in order to try his influ- 
ence wilh the English seamen.^ Totally unscrupulous as to 
the means by which he might reign, even at the moment that 

1 This division is not recorded in the calendar. Hume has adopted this no- 
Journals, in consequence, I suppose, of tiou ; but it is groundless, the mouth in 
its having been resolved in a committee law being always of twenty-eight davs, 
of the whole house. But it is impossible unless the contrary be expressed. White- 
to doubt the fact, which is referred to, lock says that Cromwell's dissolution o. 
Oct. 19, by a letter of Bourdeaux, the the parliament, because he found them 
French amba.s.sador (Thurloe, ii. 681), not so pliable to his purposes as he ex- 
who observes, "Hereby it is easily dis- pectej, caused much discontent in them 
cerned that the nation is nowise affected and others : but that he valued it not, 
to his family, nor much to himself, esteeming himself above those things : p. 
n'ithout doubt he will strengthen his 618. He gave out that the parliament 
army, and keep that in a good posture." were concerned in the conspiracy to 
It is also alluded to by Whitelock, 609. bring in the king. 

They resolved to keep the militia in the 2 Exiles are seldom scrupulous : we 

power of the parliament, and that the find that Charles was willing to propose 

protector's negative should extend only to the States, in return for their acknowl- 

to such bills as might alter the instru- edging his title, " such present and 

meut; and in other cases, if he did not lasting advantages to them bv this alli- 

pass bills within twenty days, they were ance as may appear most considerable to 

to become laws without his consent, that nation and to their posterity, and a 

Journals, Nov. 10, 1654. Whitelock, 608 valuable compensation for whatever pres- 

This was carried against the court by eut advantages the king can receive by 

109 to 85. Ludlow insinuates that this it." Clarendon State Papers, iii. 90. 

p.arliament did not sit out its legal term J'hese intrigues would have justly mad« 

of five months; Cromwell having inter- him odious iu England, 
preted the months to be lunar instead of 



Commonwealth. ROYALIST INTRIGUES. 17 

he was treating to become the covenanted king of Scotland, 
with every solemn renunciation of popery, Charles had re- 
course to a very delicate negotiation, which deserves remark, 
as having led, after a long course of time, but by gradual 
steps, to the final downfall of his family. With the advice 
of Orraond, and with the concurrence of Hyde, he attempted 
to interest the pope (Innocent X.) on his side, as the most 
powerful intercessor with the catholic princes of Europe.* 
For this purpose it was necessary to promise toleration at 
least to the catholics. The king's ambassadors to Spain in 
1650, Cottington and Hyde, and other agents despatched to 
Rome at the same time, were empowered to offer an entire 
repeal of the penal laws.^ The king himself, some time 
afterwards, wrote a letter to the pope, wherein he repeated 
this assurance. That court, however, well aware of the 
hereditary duplicity of the Stuarts, received his overtures 
with haughty contempt. The pope retui'ned no answer to 
the king's letter; but one was received after many months 
from the general of the Jesuits, requiring that Charles should 
declare himself a catholic, since the goods of the church 
could not be lavished for the support of an heretical prince.* 
Even after this insolent refusal, the wretched exiles still 
clung at times to the vain hope of succor which as protes- 
tants and Englislimen they could not honorably demand.* 
But many of ihem remarked too clearly the conditions on 
which assistance might be obtained ; the court of Charles, 
openly or in secret, began to pass over to the catholic church; 
and the contagion soon spread to the highest places. 

1 Onnond wrote strongly to tUia effect, have been made in the prejudice of cath- 
after the battle of Worcester, convinced olics, and to put them into the same con- 
that iiothins l^"' foreign assistance could dition as his other subjects.'" Cottington 
restore the king. " Amongst protestants to Father Bapthorpe. Id. 541. Tue.se ne- 
tliere is QOjie that hath the power, and gotiations with Rome were .soon known; 
»mongst the cathoUcs it id visible.'- aud a tract was published, by tlie parlia- 
Carte"s Letters, i. 461. ment's authority, containing the docu- 

'- Clarendon State Papers, ii. 481, et ments. Notwithstanding the delirium 

ssepe alibi, 'f he protestant zeal of Hyde of the Restoration, this had made an 

had surely deserted him ; and his veracity impression which was not afterwards 

in one letter gave way also : .see vol. iii. effaced. 

p. 158 But the great criminality of all ii Clarendon State Papers, iii. 181. 

these negotiations lay in this, that * '-The pope very well knows," says 

Charles was by them soliciting such a Hyde to Clement, an agent at the court 

measure of foreign aid as would make of Home, 2d April, 1656, " how far the 

him at once the tyrant of England and king is from thoughts of severity against 

the vassal of Spain ; since no tree parlia- his catholic subjects ; nay, that he doth 

ment, however royalist, was likely to re- desire to put them into the same con- 

peiil all the laws against popery. "That dition mth his other subjects, and that 

wiiich the king will be ready and willing no man shall suffer in any consideratioB 

to do is to give his con.sent lor the repeal for being a Roman catholic." Id '2i^l. 
•f ail the oenal laws aud statutes which 



18 ROYALIST INTRIGUES. Chap. X. 

In the year 1654 the royalist intrigues in England began 
to grow more active and formidable through the accession 
of many discontented repubhcans.^ Though there could be 
no coalition, properly speaking, between such irreconcilable 
factions, they came into a sort of tacit agreement, as is not 
unusual, to act in concert for the only purpose they enter- 
tained alike, the destruction of their common enemy. Major 
Wildman, a name not very familiar to the general reader, 
but which occurs perpetually, for almost half a century, 
when we look into more secret history, one of those dark 
and restless spirits who delight in the deep game of con- 
spiracy against every government, seems to have been the 
first mover of this unnatural combination. He had been 
early engaged in the schemes of the levellers, and was ex- 
posed to the jealous ob-ervation of the ruling powers. It 
appears most probable that his views were to establish a 
commonwealth, and to make the royalists his dupes. In 
his correspondence, however, with Brussels, lie engaged to 
restore the king. Both parties were to rise in arms against 
the new tyranny ; and the nation's temper was tried by clan- 
destine intrigues in almost every county.'^ Greater reliance 
however was placed on the project of assassinating Crom- 
well. Neither pai'ty were by any means scrupulous on this 
score : if we have not positive evidence of Charles's concur- 
rence in this scheme, it would be preposterous to suppose 
that he would have been withheld by any moral hesitation. 
It is frequently mentioned without any disapprobation by Clar- 
endon in his private letters ; * and, as the I'O} alists certainly 
justified the murders of Ascham and Dorislaus, they could 
not in common sense or consistency have scrupled one so 
incomparably more capable of defence.* A Mr. Gerai'd suf- 

1 Clarendon's History of the Rebellion, » P. 315, 324, 343. Thurloe, i. 360 510. 

b. 14. State Papers, iii. 265, 300, &c. In the sauie volume (p. 248) we tinii even 

Whitelock observes at this time, '• Many a declaration from the king, dated at 

sober and faithful patriots did begin to Paris, 3d May, 1654, offering 6U0i. per 

lucliiie to the king's restoration ; " and annum to any one who should kill Croui- 

hints that this was his opinion, which well, and pardon to any one who should 

excited Cromwell's jealousy of him. leave tliat party, except IJradshaw, Len- 

P. 620. thall, and llaslerig. But this seems un- 

- Clarendon's History, vii. 129. State likely to be authentic : Charles would 

Papers, iii. 265, &c. These levellers were not have avowed a design of assa^sina- 

very hostile to the interference of Hyde tion so openly : and it is strange that 

and Oruioiid, judging them too inflexibly Leuthall and Uaslerig, especially the 

attached to the ancient constitutio.!! ; but former, should be thus exempted from 

this hostility recommended them to pardon^; rather than so many regicides. 

others of the banished king's court who * See what Clarendon says of Ascham's 

showed the same sentiments. death. State Papers, 11. 642. In auothel 



OoMMONWEAT,TH. BIEASURES OF CROMWELL. 10 

fered death for one of these plots to kill Cromwell ; justly 
sentenced, though by an iUejial tribunal.^ 

In the year IGoo, Penruddock, a Wiltshire gentleman, 
with a very trifling force, entered Salisbury at the 
time of the assizes ; and, declaring for the king, tiona^y*^ 
seized the iudge and the sheriff'.'^ This little re- pioveuientB 

° . ia 1655. 

bellion, meeting with no resistance from the peo- 
ple, but a supineness equally fital, was soon quelled. It 
roused Cromwell to secure himself by an unprecedented ex- 
ercise of power. In possession of all the secrets of his ene- 
mies, he knew that want of concert or courage had alone 
prevented a general rising, towards which indeed there had 
been some movements in the midland counties.' He was 
aware of his own unpopularity, and the national bias tow- 
ards tiie exiled king. Juries did not willingly convict the 
sharers in Penruddock's rebellion.'* To govern according to 
law may sometimes be an usurper's wish, but can seldom be 
in his power. The protector abandoned all thought of it. 
Dividing the kingdom into districts, he placed at Rigorous 
the head of each a msijor-general as a sort of measures of 
military magistrate, responsible for the subjection 
of his prefecture. These were eleven in number, men bit- 
terly hostile to the royalist party, and insolent towards all 
civil authority.* They were employed to secure the pay- 

place he observes, — " It is a worse and a of the royalist schemes. The " sealed 

baser thing that any man should appear knot " of the king's friends in London 

in any part beyond sea under the charac- is mentioned as frequently as we find it 

ter of an agent from the rebels, and not in the Clarendon Papers at the same 

have his throat cut." Id. iii. 144. time. 

1 St-ite Trials, 518. Thurloe, ii. 416. * Thurloe, iii. 371, &c. " Penruddock 
Some of the malecontent comuionwealth- and Grove," Ludlow says, " could not 
men were al.<o eager to get rid of Crom- liave been justly condemned, if they had 
well by assassination ; Wildman. Sa.xby, as sure a foundation in what they de- 
Titus. Syiidercome's story is well known ; clared for, as what they declared against. 
he was connected in the conspiracy with But certainly it can never be esteemed 
those already mentioned. The famous by a wise man to be worth the .scratch of 
pamphlet by Titus, Killing no Murder, a finger to ren\ove a single person acting 
was printed in lGo7. Clarendon State by an arbitniry power, in order to set 
Papei-s, 315. 324, 343. up another with the same unlimited 

- A very reprehensible passage occurs authority:" p. 518. This is a just and 

in Clarendon's account of this tniu.-Jaction, manly sentiment. Woe to those who do 

vol. vii. p. 140; where he blames and not recognize it! But is it fair to say 

derides the insurgents for not putting that the royalists wrre contending to set 

chief-justice lloUe and others to death, up an nnliuiited authority ? 

which would have been a detestable and " They were originally ten, Lambert, 

usele.ss murder. T)e.sborough. Whalley, OolTe, Fleetwood, 

a Whitelock, 618, 620. Ludlow, 513. Skippon, Kel.sey, Butler, W'orseley, and 

Thurloe, iii. 204, and through more than Berry. Thurloe, iii. 701- Barkstead 

half the volume, passim. In the pre- w;is afterwards added. " The m.ajor- 

cuding volume we have abundant proofs generals," says Ludlow, "carried things 

how completely master Cromwell waa with unheard-of insolence in their severa] 



20 AKBITRARY GOVERNMENT Chap. X 

ment of a tax of ten per cent., imposed by Cromwell's 
arbitrary will on those who had ever sided with the king 
during the late wars, where their estates exceeded 100^. per 
annum. Tiie major-generals, in their correspondence printed 
among Thurloe's papers, display a rapacity and oppx'ession 
beyond their master's. They complain that the number of 
those exempted is too great ; they press for harsher meas- 
ures ; they incline to the unfavorable construction in eVery 
doubtful case ; they dwell on the growth of malignancy and 
the general disaffection.^ It was not indeed likely to be 
mitigated by this unparalleled tyranny. All illusion was 
now gone as to the pretended benefits of the civil war. It 
had ended in a despotism, compared to which all the illegal 
practices of former kings, ail that had cost Charles his life 
and crown, appeared as dust in the balance. For what was 
ship-money, a general burden, by the side of the present 
decimation of a single class, whose offence had lung been 
expiated by a composition and effaced by an act of indem- 
nity ? or were the excessive punishments of the star-cham- 
ber so odious as the capital executions inflicted without trial 
by peers, whenever it suited the usurper to erect his high 
court of justice ? A sense of present evils not only excited 
a burning desire to live again under the ancient monarchy, 
but obliterated, especially in the new generation, that had no 
distinct remembrance of them, the apprehension of its former 
abuses.^ 

precincts, decimating to extremity whom witii comfort appeal to Qod, and dare 

tliey pleased, and interrupted the pro- also to their own consciences, whether 

ceedings at law upon petitions of those this way of proceeding with them hatU 

who pretended themselves aggrieved; been the matter of our choice, or that 

threatening such as would not yield a which we have sought an occasion for; 

ready submission to their orders with or whether, contrary to our own incli- 

transport;ition to Jamaica, or some other nations and the constant course of our 

plantation in the West Indies," &c. P. carriage towards them, which hath been 

559. to oblige them by kindness to forsake 

1 Thurloe, vol. iv. passim. The un- their former principles, wliich God hath 

• popularity of Cromwell's government ap- so often and so eminently bore witness 

pears strongly in the letters of this col- against, we have not been constrained 

lection. Duckinfield, a Cheshire gentle- and necessitated hereunto, and without 

man, writes, — " Charles Stuart hath the doing whereof we should have been 

500 friends in these adjacent counties for wanting to our duty to God and these 

every one friend to you amongst them." naiions. 

Vol. iii 294. '' That character of difference between 

- It may be fiiir towards Cromwell to them and the rest of the people which is 

give his owu apology for the decimation now put upon them is occasioned by 

of the royalists, in a declaration pub- themselves, not by us. There is nothing 

lished 1655. " It is a trouble to us to they have more industriously labored in 

be still rubbing upon the old sore, dis- tlian this — to keep themselves distin- 

oMigin? those whom we hope time and guished from the well-alfected of this 

paiieuce might make friends ; but we can nation : to which end they have kepi 



COMMONWEALTH. OF CRO^rWELL. 21 

If this decimation of the royahsts could pass for an act 
of severity towards a proscribed faction, in which nia iirbitrary 
the rest of the nation might fancy tliemselves not government, 
interested, Cromwell did not fail to show that he designed to 
exert an equally despotic command over every man's prop- 
erty. With the advice of the council, he had imposed, or 
as I conceive ' (for it is not clearly explain(;d) continued, a 
duty on merehandise beyond the time limited by law. A 
Mr. George Cony having refused to pay this tax, it was en- 
forced from him, on which he sued the collector. Cromwell 
sent his counsel, Maynard, Twisden, and Wyndham, to the 
Tower, who soon petitioned for liberty, and abandoned their 
client. Rolle, the chief-justice, when the cause came on, 
dared not give judgment against the protector ; yet, not 
caring to decide in his favor, postponed the case till tho 
next term, and meanwhile retired from the bench. Glyn, 
who succeeded him upon it, took care to have this business 
accommodated with Cony, who, at some loss of public rep- 
utation, withdrew his suit. Sir Peter Wentworth, having 
brought a similar action, was summoned before the council, 
and asked if he would give it up. " If you command me," 
he replied to Cromwell, " I must submit ; " which the pro- 
tector did, and the action was withdrawn.^ 

Though it cannot be said that such an interference with 
ihe privileges of advocates or the integrity of judges was 
without precedents in the times of the Stuarts, yet it had 
never been done in so public or shameless a manner. Sev- 
eral other instances wherein the usurper diverted justice 
from its coui'se, or violated the known securities of English- 
men, will be found in most genei'al histories ; not to dwell on 
that most flagrant of all, the erection of his high court of 
justice, by which Gerard and Vowel in 1654, Slingsby and 

fUeir conTersation apart : 83 if they interest from it, gives us ground to judge 

would avoid tlie very beginniagu of tliiit they have sepiirated tlieiiiselves from 

anion, have "bred and educated their the body of the nation ; and therefore we 

etiildren by the sequestered and ejected leave it to all mankind to jud^e whether 

clergy, and very much confined tlieir we ouglit not to be timely jealous of 

marriages and alliances within their own that separation, and to proceed .-^o against 

party, as if they meant to ent&il their theni as they may be at the charge of 

quarrel, and prevent the means to recon- those remedies wliich are required against 

cile posterity , which with the great pains the langers they have bred." 

they fcike upon all occasions to le.s.sen i Ludlow, 528. Clarendon, &c. Clar- 

and suppress the esteem and honor of endon rehites tho same story, with addi- 

the Enghsh nation in all their action!! tional circumstances of Cronnvclfs auda 

and uudert;ikings abroad, striving withal cious contempt for the courts of justice 

to make other nations distinguish their and for the verv name uf magiia vaaiU 



22 



PARLIAMENT OF 1656. 



Chap. \. 



Hewit in 1658, were brought to the scaffold.* I cannot 
therefore agree in the praises which have been showered 
upon Cromwell for the just administration of the laws under 
his dominion. Tliat, between party and party, the ordinary 
civil rights of men were fairly dealt with, is no extraordi 
nary praise ; and it may be admitted that he filled the 
benches of justice with able lawyers, though not so consid- 
erable as those of the reign of Charles 11. ; but it is mani- 
fest that, so far as his own authority was concerned, no 
hereditary despot, proud in the crimes of a hundred ances- 
tors, could more have spurned at every limitation than this 
soldier of a commonwealth.^ 

Amidst so general a hatred, trusting to the effect of an 
He summons eqi^'^Uy general terror, the protector ventured to 
another par- summou a parliament in 165G. Besides the cnra- 
ameut. ^^^^^ neccssitics for money, he had doubtless in his 
head that remarkable scheme which was developed during its 
session.^ Even the despotic inHuence of his major-generals; 
and the political annihilation of the most considei-able body 
of the gentry, then laboring under the imputation of delin- 
quency for their attachment to the late king, did not enable 
him to obtain a secure majority in the assembly ; and he was 
driven to the audacious measure of excluding above ninety 
members, duly returned by their constituents, fi'om taking 
their seats. Their colleagues wanted courage to resist this 



1 state Trials, Ti. Whitelock advised 
the prott'ctor to proceed according to law 
against Uewit and Slingsby ; " but his 
highness was too much in love with the 
new way.'" P. C73. 

- The late editor of the State Trials, v. 
935, has introduced a sort of episodical 
dissertatiDU on the administration of jus- 
tice during the commonwealth, with the 
view, as far as appears, of setting Crom- 
well in a favorable light. For this pur- 
pose he quotes several passages of vague 
commendation from dilferent aruthors, 
and among others one from IJurke, writ- 
ten in haste, to serve an immediate pur- 
pose, and evidently from a very super- 
ficial recollection of our history. It has 
been said that Cromwell sought out men 
of character from the party most opposite 
to his designs. The proof given is the ap- 
pointment of Hale to be a puisne judge. 
B".t Uale had not been a royalist, that is, 
an adherent of Charles, and had taken 
the engagemi nt as well as *he covenant. 
It was no great effort of irtue to place 
an eminent lawyer and worthy man on 



the bench. And it is to be remembered 
that Hale fell under the usurper's dis- 
pleasure for administering justice with aa 
impartiality that did not suit his govern- 
ment ; and cetised to go the circuit be- 
cau.se the criminal law was not allowed 
to have its course. 

^ Thurloe writes to Montague (Carte'a 
Letters, ii. 110) that he cannot give him 
the reasons for calling this parli.iment, 
e' cppt in cipher, lie says in the same 
place of the committjil of Ludlow, Vane, 
and others, " There was a ncces-^ity not 
only for peace' sake to do this, but to 
let the liatioii see those that govern ai'e 
in good earnest, and intend not tc ijuit 
the government wholly into the hands of 
the piirhament. ns some would iieed.>i 
make the world believe : '' p. 112. His 
first direct allusion to the pi-ojected 
change is in writing to Henry Crom>vell, 
9th Dec. 1656. Thurloe Papers, v. 194. 
The influence exerted by his legates, tha 
major-generals, appears in Thurloe, t. 
299, et post. But they complained of tU« 
elections. Id. 302, 341, 371. 



CoMMO>-WEALTn. CROMWELL'S DESIGN TO BE KING. 23 

violation of all y)i'ivilege ; and, after referring tlicm to the 
council for approbation, resolved to proceed with puljlic busi- 
ness. The excluded members, consisting partly of the re 
publican, partly of the presbyterian factions, published a 
remonstrance in a very high strain, but obtained no redress.^ 
Cromwell, like so many other usurpers, felt his position 
too precarious, or his vanity ungratified, without j)gj.;,^g ^^ 
the name whicli mankind have agreed to worship, take tuo 
He had, as evidently appears from the conversa- '=''""''^- 
tions recorded by AVhitelock, long since aspired to this titu- 
lar, as well as to the real, preeminence ; and the banished 
king's friends had contemplated the probability of his ob- 
taining it with dismay.^ Affectionate towards his family, he 
wished to assure the stability of his son's succession, and 
perhaps to jjlease the vanity of his daughters. It Avas indeed 
a very reasonable object with one who had already advanced 
so far. His assumption of the crown was desirable to many 
different classes ; to the lawyers, who, besides tlieir regard 
for the established constitution, knew that an ancient statute 
would protect those who served a de facto king in case of a 
restoration of the exiled family ; to the nobility, who per- 
ceived that their legislative right must immediately revive ; 
to the clergy, wlio judged tlie regular ministry more likely 
to be secure under a monarchy ; to the people, Avho hoped 
for any settlement that w^ould put an end to perpetual 
changes ; to all of every rank and profession who dreaded 
the continuance of military despotism, and demanded only 
the just rights and privileges of their country. A king of 

1 Whitelock, 650. Pari. Ilist. 1486. On of good conTersation, that the council, in 

a letter to the speaker from the members pursuance of their duty, and accorjhig to 

who h;id beeu refused admittiince at the the trust reposed in them, have examined 

door of the lobby, Sept. IS, the house the said returns, and have not nfiised to 

ordered the clerk of the commonwealth approve any who have appeared to them 

to attend next day witli all the iudeu- to be per.-ons of integrity, fearing UoJ, 

tures. The deputy clerk came accord- and of good conversation; and tliose who 

Ingly, witii an excuse for his principal, are not approved, his highnc-^.s hath given 

and brought the indentures ; but on being order to some persons to take care that 

asked wliy the names of certain members they do not come into the house. Upon 

were not returued to the hou.se, answered, this answer, an adjournment was pro- 

that he had no certificate of approbation posed, but lost by 115 to SO: and it being 

for them. The house on this sent to in- moved that the persons who have been 

quire of the council why these members returned from the several counties, cities, 

had not been approved. They returned and boroughs to serve in this parliimcut, 

for answer, that, whereas it is ordained and liave not been approved, he referred 

by a clause in the instrument of govern- to the council for approb:itio)i, and tliat 

ment that the persons who sliall be the house do proceed with the great alf.iirJ 

elected to serve in parliament shall bo of the nation, the question w.is cariicd by 

such and no other th.an such as are per- 125 to 29. Journals, Sept. 22. 

Bons of known integrity, fearing God, and 2 Olar. State Papers, iii. 201. &o. 

VOL. II. — c. 3 



24 



CROMWELL'S DESIGN TO BE KING. 



ClIAT. X 



England could succeed only to a bounded prerogative, and 
must govern by the known laws ; a protector, as tlie nation 
had well felt, Avith less nominal authority, had all tlie sword 
could confer. And, though there might be little chance thai 
Oliver would abate one jot of a despotism for which not the 
times of the Tudors could furnish a precedent, yet his life 
was far worn, and under a successor it was to be expected 
lliat future parliaments might assert again all those liberties 
for which they had contended against Charles.^ A few of 
fhe royalists might perhaps fancy that the restoration of the 
loyal title would lead to that of the lawful heir ; but a 
greater number were content to abandon a nearly desperate 
cause, if they could but see the more valuable object of their 
concern, the form itself of polity, reestablished.''^ There 
«an be, as it appears to me, little room for doubt, that, if 
Cromwell had overcome the resistance of his generals, he 
would have transmitted the sceptre to his descendants with 
the acquiescence and tacit approbation of the kingdom. Had 
we been living ever since under the rule of his dynasty, 
what tone would our historians have taken as to his charac- 
ter and that of the house of Stuart ? 

The scheme, however, of founding a new royal line failed 



1 The whole conference that took place 
at Whitehall, between Cromwell and the 
committee of parliament, on this subject, 
was published by authoiity, and may be 
read in the Somers Tracts, vi. 349. It is 
very interesting. The lawyers did not 
hesitate to support the proposition, on 
the ground of the more definite and legal 
character of a king's authority. The 
" king's prerogative," says Glyn, " is 
known by law ; he (king Charles) did ex- 
patiate beyond the duty ; that's the evil 
of the man : but in Westminster-hall the 
king's prerogative was under the courts 
of justice, and is bounded as well as any 
acre of land, or anything a man hath, as 
much as any controversy between party 
and party ; and therefore, the office being 
lawful in its nature, known to the nation, 
certain in itself, and confined and regu- 
lated by the law, and the other oflice not 
being so, that was a great ground of the 
reason why the parliament did so much 
insist upon this office and title, not as 
circumstantial, but as essential." P. 359. 
See also what Lenthall says, p. 356, 
against the indefiuiteuess of the protec- 
tor's authority. 

Those passages were evidently implied 
censures < 1 the late course of govern- 



ment. Cromwell's indistinct and evasive 
style in his share of this debate betray.s 
the secret inclinations of his heart. He 
kept his ultimate intentions, however, 
very secret ; for Tliurloe professes his 
ignorance of them, even in writing to 
Henry Cromwell, vol. vi. p. 219, et post. 
This correspondence shows that th? pru- 
dent secretary was uneasy at the posture 
of affairs, and the manifest dissatisfaction 
of Fleetwood and Desborough, which had 
a dangerous influence on others less 
bound to the present family: yet he had 
set his heart on this mode of .settlemeut, 
and was n.uch disappointed at his mas- 
ter's ultimate refusal. 

- Clarendon's Hist. vii. 194. It appears 
by Clarendon's private letters that he had 
expected to see Cromwell assume tho 
title of king from the year 1654. Vol. 
iii. pp. 201, 223, 224. If we may trust 
what is here called an intercepted letter 
(p. 328), Mazarin had told Cromwell that 
France would enter into a strict league 
with him, if he could settle himself in 
the throne, and make it hereditary ; to 
which he answered that he designed 
shortly to take the ci'on n, r'"Store the 
two houses, and govern by the ancieut 
laws. But fills may be apocryplial. 



CoMJioA-wEALTU. THE PROJECT FAILS. 25 

of accomplishment, as is well known, through his own cau- 
tion, which deterred him from encountering the decided oppo- 
sition of his array. Some of his contemporaries The project 
seem to have deemed this abandonment, or more '''^''^• 
properly suspension, of so splendid a design rather derogar. 
tory to his firmness.^ But few men were better judges than 
Cromwell of ^vhat might be achieved by daring. It is cer- 
tainly not impossible that, by arresting Lambert, "Wlialley, 
and some other generals, he might have crushed for the mo- 
ment any tendency to open resistance. But the experiment 
would have been infinitely hazardous. He had gone too far 
in the path of violence to recover the high road of law by 
any short cut. King or protector, he must have intimidated 
every parliament, or sunk under its encroachments. A new- 
modelled army might have served his turn ; but there would 
have been great difficulties in its formation. It had from the 
beginning been the misfortune of his government that it 
rested on a basis too narrow for its safety. For two years 
he had reigned with no support but the independent secta- 
I'ies and the army. The army or its commanders becoming 
odious to the people, he had sacrificed them to the hope of 
popularity, by abolishing the civil prefectures of the major- 
generals,- and permitting a bill for again decimating the 
i-oyalists to be thrown out of the house.^ Their disgust 

1 Clar. vii. 203. him by their interest in the army, the 
- Ludlow, p. 581. The major-generals, more of force upholds his highness living, 
or at least many of them, joined the op- the greater when he is dead wiH be the 
position to CromwelPs royalty Id. p. hopes and advantages for such a one to 
586. Clar. State Papers, 332. effect his aim who desires to succeed him. 
'■> This appears from the following pas- Lambert is much for decimations." Thur- 
eage in a curious letter of Mr. Vincent Ice, vi. 20. lie writes again, " I am con- 
Gookin to Henry Cromwell, 27th Jan. fident it is judged by some that the iu- 
1657. " To-morrow the bill for decimat- terest of the godly cannot be preserved 
iug the cav.-iliers comes again into debate, but by the dissolution of this, if not all 
It is debated with much heat by the parliaments; and their endeavors in it 
major-general!(, and as hotly almost by have been plainly discovered to the party 
the auti-decimators. I believe the bill most concerned to know them ; which 
will be thrown out of tttf house. In my will, I believe, suddenly occasion a reduc- 
opinioa those that speak against the bill iug of the government to kingsliip, to 
have much to say in point of moral jus- which hi? highness is not aver.'ie. Pier- 
tice and prudence ; but that which makes point and St. John have been often, but 
me fear the passing of the bill is, that secretly, at Whitehall. I know, to advise 
thereby his highness' government will be thereof." P. 37. Thurloe again, to the 
more founded in force, and more removed same Henry Cromwell, on February 3, 
from that natural foundation which the that the dccim.ation bill was thrown out 
people in parliament are desirous to give by a majority of forty : — "Some gentle- 
him ; supposing that he will become more men do think themselves much trampled 
theirs than now he is, and will in time upon by this vote, and are extremely sen- 
find the safety and peace of the nation to tiule thereof; and the truth is, it hath 
be as well maintained bv the laws of the wrought such a heat in the house, that ] 
land a-s by the sword. And truly, sir, if fear little will be done for the future." 
*ny others have pretensions to succeed Id. p. 38. No such bill appears, eo nom 



26 CROMWELL'S AUTHORITY Cn.vp. X. 

and resentment, excited by an artful intriguer, Lambert, who 
aspired at least to the succession of the protectorship, found 
scope in the new project of raonarcliy, naturally obnoxious 
to the prejudices of true fanatics, who still fancied themselves 
to have contended for a republican liberty. We find that 
even Fleetwood, allied by marriage to Cromwell, and not 
involved in the discontent of the major-generals, in all the 
sincerity of his clouded understanding, revolted from the in- 
vidious title, and would have retired fi-om service had it been 
assumed. There seems therefore reason to think that Crom- 
well's refusal of the croAvn was an inevitable mortification. 
But he undoubtedly did not lose sight of the object for the 
short remainder of his life.^ 

The fundamental charter of the English commonwealth, 
under the protectorship of Cromwell, had been 
ky^aTpro-'" the instrument of government, drawn up by. the 
Pectoris council of ofiicers in December, 1653, and ap- 
proved with modifications l)y the parliament of 
the next year. It was now changed to the " Petition and 
Advice," tendered to him by the present parliament in May, 
1657, which made very essential innovations in the frame of 
polity. Though he bore, as formerly, the name of lord-pro- 
tectoi', we may say, speaking according to theoretical classifi- 
cation, and without reference to his actual exercise of power, 
which was nearly the same as before, that tlie English gov- 
ernment in the first period should be ranged in the order of 
republics, though with a chief magistrate at its head ; but 
that from 1657 it became substantially a monarchy, and 
ought to be placed in that class, notwithstanding the differ- 
ence in the style of its sovereign. The Petition and Advice 

fne, in the Journals. But a bill for reg- of the commonwealth's men. and fearing 

ulating the militia forces was thrown a mutiny and defection of a great part oi 

out, .Ian. 29, by 124 to 8S, col. Cromwell the army, in case he should assume that 

(Oliver's cousin) being a teller for the title and office, his mind changed, and 

majority. Probably there was some clause many of the ofTlcors of the army gave out 

In this renewing the decimation of the great threatenings against him in case he 

loyalists. should do it ; he therefore thought it best 

1 Whitelock, who was consulted by to attend some better season and oppor- 

Cromwell on this business, and took an tunity in this business, and refused it at 

active part as one of the committee of this time with great sceniingtariiestness." 

conference appointed by the house of P. G56. The chief advisers with Crom- 

commons, intimates that the project was well on this occasion, besides Whitelock, 

not really laid aside. " lie was satisfied were lord Broghill, Pierpoint, Thnrloe, 

In his private judgment that it was fit and sir Charles Wolseley. Many passa- 

for him to t;ike upon him the title of ges iu Thurloe, vol. vii., show that Crom- 

klng, and matters were prepared in order weli preserved to the last liifl views ou 

thereunto; but afterwards by solicitation royalty. 



Commonwealth. - AUGMENTED. 27 

had been compiled with a constant respect to that article 
which conferred the royal dignity on the protector ; ^ and 
when this was withdrawn at his request, the rest of the 
instrument was preserved with all its implied attributions 
of sovereignty. The stylo is that of subjects addressing a 
monarch ; the powers it bestows, the privileges it claims, are 
supposed, according to the expressions employed, the one to 
be already his own, the other to emanate from his will. The 
necessity of his consent to laws, though nowhere mentioned, 
seems to have been taken for granted. An unhmited power 
of appointing a successor, unknown even to constitutional 
kingdoms, was vested in the protector. lie was inaugurated 
with solemnities applicable to monarchs ; and what of itself 
is a sufficient test of the monarchical and republican species 
of government, an oath of allegiance was taken by every 
member of parliament to the protector singly, without any 
mention of the commonwealth.^ It is surely, therefore, no 
paradox to assert that Oliver Cromwell was de facto sov- 
ereign of England during the interval from June, 1G57, to 
his death in {September, 1658. 

The zealous opponents of royalty could not be insensible 
that they had seen it revive in everything except a title, 
which was not likely to remain long behind.^ It was too 
late, however, to oppose the first magistrate's personal author- 
ity. But there remained one in)portant point of contention, 
which the new constitution had not fully settled. It was 
therein provided that the parliament should consist of two 

1 Whitclock, 657. It had been agreed, longing ; and to exercise the same ac- 

In discussing the Petition and Advice in cording to the laws of these nations." 

parliament, to postpone the first article Oa Cromwell s first demurring to the 

roquesliug the protector to assume the proposal, it was resolved to adhere to the 

title of king, till the rest of the charter Petition and Advice by the small major- 

(to use a modern but not inapplicable ityof78to65. This was perhaps a suffi- 

woid) had bev-n gone through. One of cient warning that he should not proceed, 

the subsequent articles, fixing the rev- 2 Journals, 21st June. This oath, which 

enue at l.UOU.OOOi. per annum, provides effectual'" 'teclared the parliamcut to be 

that DO part thereof should hn raised by the protector's subjects, was only carried 

a land-tax, "and this not to be altered by 03 to 55. Lambert refused it, and wa« 

witliout the consent of the three estates dismissed the army in cousociuence, with 

in parliament." A division took place, a pension of 2000/. per annum, iriStf id of 

in consequence, no doubt, of this insidi- his pay, lU/. a-day : so well did tliry cater 

ous expression, which was preserved by for themselves. Ludlow, 593. BroJerick 

97 to 50. Journals, 13th March. The wrote to Hyde, June 30, lu57, that there 

first article was carried, after much de- was a geueral tranquillity in Kngland, 

bate, on March 24, by 123 to 62. It stood all parties sefmiug sati.-fied with the 

thus: " liesolveJ, That your highness compromise; Fleetwood and Desborough 

will be pleased to assume the name, style, more absolutely Orom weirs friends than 

dignity, and office of king of England, before, and Lambert very silent. Clar. 

Scotland, and Ireland, and the respective State Papers, 349. 

doniiuious and territories thereunto be- 8 Thurloe, vi. 310. 



28 NEW HOUSE OF LOEDS. Chap. X. 

houses; namely, the commons, and what tliey always termed, 
with an awkward generality, the other house. This was to 
consist of not more than seventy, nor less than forty persons, 
to be nominated by the protector, and, as it stood at first, to 
be approved by the commons. But, before the close of tlie 
session, the court party prevailed so far as to procure the re- 
peal of this last condition:^ and Cromwell accord- 
He aims at i , . , . , ,, . „ 

forming a mgly issucd writs ot summons to persons of va- 
of Tonk'^* rious parties, a few of the ancient peers, a few of 
his adversaries, whom he hoped to gain over, or at 
least to exclude from the commons, and of course a majority 
of his steady adherents. To all these he gave the title of 
lords, and in the next session their assembly denominated 
itself the lords' house.^ This measure encountered consid- 
erable difficulty. The republican party, almost as much 
attached to that vote Avhich had declared the house of lords 
useless as to that which had abolished the monarchy, and 
well aware of the intimate connection between the two, re- 
sisted the assumption of this aristocratic title, instead of that 
of the other house, which the Petition and Advice had sanc- 
tioned. The real peers feared to compromise their hereditary 
right by sitting in an assembly where the tenure was only 
during life ; and disdained some of their colleagues, such as 
Pride and Hewson, low-born and insolent men, whom Crom- 
well had rather injudiciously bribed with this new nobility ; 
though, with these few exceptions, his house of lords was re- 
spectably composed. Hence, in the short session of January, 
1658, wherein the late excluded members were permitted to 
take their seats, so many difficulties w'ere made about ac- 
knowledging the lords' house by that denomination, that the 
protector hastily and angrily dissolved the parliament.^ 

It is a lingular part of Cromwell's system of policy that 
he would neither reign with parliaments nor without them ; 
impatient of an opposition which he was sure to experience, 
he still never seems to have meditated the attainment of a 



1 Compare Journals, 11th March with mentioned by Thurloe, ri. 107, &c., and 

2ith June. Ludlow, 597. Not one of the true peers, 

- Whitelock, CCS. They were to have except lord Eure, took bis seat iu this 

a judicial power much like tb.it of the bouse ; and Uaslerig, who had been nom- 

real house of lords. Journals, March- inated merely to weaken his intiucnce, 

a Whitelock; Pari. Hist. The former chose to retain his place in the commons. 

Bays this was done against bis advice. The list of these pretended lords iu.Thur- 

These debates about the other house are loe, vi C68, is not quite the same as that 

to be traced in the Journals ; and are iu Whitelock. 



CoMsioxwEALxn. DE^VTII OF CROMWELL. 29 

naked and avowed desjiotism. This was probably due to hia 
observation of the ruinous consequences that Charles had 
brought on hiiusclf by that course, and his knowledge of the 
temper of the English, never content without the exterior 
forms of liberty, as well as to the suggestions of counsellors 
who were not destitute of concern lor the laws. He had also 
hit;' great design yet to accomplish, which could only be safely 
dou<> uiider the sanction of a parliament. A very short time, 
accordingly, before his death, we find that he had not only 
resolved to meet once more the representatives of the nation, 
but was tampering with several of the leading officers to ob- 
tain their consent to an hereditary succession. The majority 
however of a council of nine, to whom he referred this sug- 
gestion, would only consent that the protector lor the time 
being should have the power of nominating his successor ; a 
vain attempt to escape from that regal form of government 
which they had been taugLt to abhor.-^ But a sudden illness, 
of a nature seldom fatal except to a constitution already shat- 
tered by fatigue and anxiety, rendered abortive all these 
projects of Ci'om well's arabilion. 

He left a tame behind him proportioned to his extraordi* 
nary fortunes and the great qualities which sus- jjj^ ^^^^^ 
taincd them ; still more perhaps the admiration of anu char- 
strangers than of his country, because that senti- '^'^'"' 
ment was less alloyed by hatred, which seeks to extenuate the 
glory that irritates it. The nation itself forgave much to one 
who had brought back the renown of her ancient story, the 
traditions of Elizabeth's age, after the ignominious reigns of 
her successors. This contract with James and Charles in 
their foreign policy gave additional lustre to the era of the 

1 This junto of nine debated how they major part voted that succession in the 
might be secure against the cavaliers, goverumcut was inililfereut whether it 
Oue scheme was an oath of abjuration; were by election or hertdibirv ; but after- 
but this it was thought they would ali wards some would needs add that it waa 
take: another was to lay a heavy tax on desirable to have it continued elective; 
them; "'a moiety of their estates was that is, that tlie chief magistrate should 
spoken of ; but this, I suppose, will not always name his successor, and that of 
go down with all the nine, and leiust of hereditary avoided; and 1 fear the word 
all will it be swallowed by the parlia- 'desirable' will be made 'necessary,' if 
ment, who will not bo persuaded to over it como upon the trial. His high- 
punish both nocent aud innocent with- uess, finding he can have no advice from 
out distinction." 22d June : Thurloe, those he most cxpectcil it from, saith he 
vol. vii. p. IDS. And .again, p. 201): ''I will take his own re.'^olutions, and that 
beliove we are out of diinger of our he can no longer satisfy himself to sit 
junto, and 1 think also of ever having still, and make himself guilty of the loan 
such another. As 1 take it, the report of all the houust party uud of the mitioa 
was made to his highness upon Thurs- itself." 
day. After much consideration the 



30 HIS CHARACTER. Chap. X. 

protectorate. There could not but be a sense of national 
pride to see an Englishman, but yesterday raised above the 
many, without one drop of blood in his veins which the 
pi'inces of the earth could challenge as their own, receive the 
homage of those who acknowledge no right to power, and 
hardly any title to respect, except that of prescription. The 
sluggish pride of the court of Spain, the mean-spirited cun- 
ning of Mazarin, the irregular imagination of Christina, 
sought wnth emulous ardor the friendship of our usurper.' 
He had the advantage of reaping the harvest which he had 
not sown, by an honorable treaty with Holland, the fruit of 
victories achieved under the parliament. But he still em- 
ployed the great energies of Blake in the service for which 
he was so eminently fitted ; and it is just to say that the 
maritime glory of England may first be traced from the era 
of the commonwealth in a track of continuous light. The 
oppressed protestants in catholic kingdoms, disgusted at the 
lukewarmness and half-apostasy of the Stuarts, looked up to 
him as their patron and mediator.''^ Courted by the two rival 
monarchies of Europe, he seemed to threaten both with his 
hostility ; and when he declai'ed against Spain, and attacked 
her West India possessions, with little pretence certainly of 
justice, but not by any means, as I conceive, with the impol- 
icy sometimes charged against him, so auspicious was his star 
that the very failure and disappointment of that expedition 
obtained a more advantageous possession for England than 
all the triumphs of her Ibrmer kings. 

Notwithstanding this external splendor, which has deceived 
some of our own and most foreign writers, it is evident that 

1 Harris, p. SIS, has collected some ever, that he was very far from having 
curious instances of the servility of any thought to draw them from their 
crowned heads to Cromwell. obedience, as had been imputed to him 

2 See Clarendon, vii. 297. He saved and that he would arm against them if 
Nismes from military execution on ac- they should offer, frivolously and with- 
count of a riot, wherein the Huguenots out a cause, to disturb the peace of 
seem to have been much to blame. In France. Thurloe, iii. 6. In fact, the 
ths ti-eaty between England and France, French protestants were in the habit of 
IGo'i, the French, in agreeing to the writing to Thurloe, as this collection tes- 
Becrct article about the exclusion of the tifies, whenever they thouglit tliemselves 
royaliits, endeavored to mal<e it recipro- injured, which happened frequently 
cal, that the commissioners of rebels in enough Cromwell's noble zeal in he- 
France' should not be admitted in Eng- half of the Vaudois is well known. See 
land. This did not seem very outrageous this volume of Thurloe, p. 412, &c. 
— but Cromwell objected that the French Mazarin and the catholic powers in geu- 
pro(estants would be thus excluded from eral endeavored to lie down that mas- 
Imploring the assistance of England if sacre ; but the usurper had too much 
they were persecuted; protesting, hew- protestaut spirit to believe tbem. Id 

52S. 



Common WEALTH. CKOJIWELL AND NAPOLEON. 31 

the submission of the people to Cromwell was far from peace- 
able or voluntary. Plis strong and skilful grasp kept down 
a nation of enemies that must naturally, to judge irom their 
numbers and inveteracy, have overwhelmed liim. It required 
a dexterous nruiagement to play with the army, and without 
the army he could not have existed as sovereign for a day. 
Yet it seems improbable that, had Cromwell lived, any insur- 
rection or conspiracy, setting aside assassination, could have 
overthrown a possession so fenced by systematic vigilance, by 
expericnt-ed caution, by the respect and terror that belonged 
to his name. The royalist and republican intrigues had gone 
on for several years without intermission ; but every part of 
their designs was open to him ; and it appears that there was 
not courage or rather temerity sufficient to make any open 
demonstration of so prevalent a disaffection.-^ 

The most superficial observers cannot have overlooked the 
general resemblances in the fortunes and character of Crom- 
well, and of him who, more recently and upon an ampler 
theatre, has struck nations with wonder and awe. But the 
parallel may be traced more closely than perhaps has hitherto 
been remarked. Both raised to power by the only merit 
which a revolution leaves uncontroverted and untarnished, 
that of military achievements, in that reflux of public senti- 
ment when the fervid enthusiasm of democracy gives place 
to disgust at its excesses and a desire of firm government. 
The means of greatness the same to both — the extinction of 
a representative assembly, once national, but already muti- 
lated by violence, and sunk by its submission to that illegal 
force into general contempt. In military science or the 
renown of their exploits we cannot certainly rank Cromwell 
by the side of him for whose genius and ambition all Europe 
seemed the appointed quarry ; but it may be said that the 
foi-mer's exploits were as much above the level of his con- 
temporaries, and more the fruits of an original uneducated 
capacity. In civil government there can be no adequate 
parallel between one who had sucked only the dregs of a 
besotted fanaticism, and one to whom the stores of reason 
and philosophy were open. But it must here be added that 
Cromwell, far unlike his antitype, never showed any signs of 
a legislative mind, or any desire to fix his renown on that 
noblest basis, the amelioration of social institutions. Botli 

1 Ludlow B07; Thurloe, i. and ii. passim. 



32 CROMWELL AND NAPOLEON. Chat. X. 

were eminent masters of human nature, and played with 
inferior capacities in all the security of powerful minds. 
Though both, coming at the conclusion of a struggle for lib- 
erty, trampled upon her claims, and sometimes spoke disdain- 
fully of her name, each knew how to associate the interests 
of those who had contended for her with his own ascendency, 
and made himself the representative of a victorious revolu- 
tion. Those Avho had too much philosophy or zeal for free- 
dom to give way to popular admiration for these illustrious 
usurpers, were yet amused with the adulation that lawful 
princes showered on them, more gratuitously in one instance, 
with servile terror in the other. Both, too, repaid in some 
measure this homage of the pretended great by turning their 
ambition towards those honors and titles which they knew to 
be so little connected with high desert. A fallen race of 
monarchs, which had made way for the greatness of each, 
cherished hopes of restoration by their power, till each, by 
an inexpiable act of blood, manifested his determination to 
make no compromise with that line. Both possessed a cer- 
tain coarse good-nature and affability that covered the want 
of conscience, honor, and humanity ; quick in passion, but 
not vindictive, and averse to unnecessary crimes. Their 
fortunes in the conclusion of life were indeed very different : 
one forfeited the affections of his people, which the other, ia 
the character at least of their master, had never possessed ; 
one furnished a moral to Europe by the continuance of his 
success, the other by the prodiglousness of his fall. A fresh 
resemblance arose afterwards, when the restoration of those 
royal families, Avhom their ascendant had kept under, revived 
ancient animosities, and excited new ones ; those Avho from 
love of democratical liberty had borne the most deadly hatred 
to the apostates who had betrayed it, recovering some affec- 
tion to their memory, out of aversion to a common enemy. 
Our English republicans have, with some exceptions, dis- 
played a sympatliy for the name of Cromwell ; and I need 
not observe how remarkably this holds good in the case of 
his mighty parallel.-^ 

1 Mrs. Jlacaulay, -who had nothing ters, such as Neal, and in some measure 

of compromise or conciliation in her tern- Harris, were particularly open to thia 

per, au<.l breathed the entire spirit of reproach. lie long continued (perhaps 

Vane and Ludlow, makes some vigtirous the present tense is more appropriate) to 

and just animadversions on the favor bs revered by the iudependeuts. One 

Bbowu to Cromwell by some professors of who well knew the manners he paints 

a regard for liberty. The dissenting wri- lias described the secret idolatry of that 



Commonwealth. RICHARD CROIFWELL PROTECTOR. 33 

The death of a great man, even in the most rcgulai' course 
of affairs, seems always to create a sort of pause Rjdjarj j^jg 
in the movement of society ; it is always a prob- so"> sue- 
lem to be solved only by experiment, whether the ^'^'^ ^ ™' 
mechanism of government may not be disordered by the 
shock, or have been deprived of some of its moving powers. 
But what change could be so great as that from Oliver 
CromAvell to his son ! from one beneath the terror of whose 
name a nation had cowered and foreign princes grown pale, 
one trained in twenty eventful years of revolution, the first 
of his age in the field or in council, to a young man fresh 
from a country life, uneducated, unused to business, as little a 
statesman as a soldier, and endowed by nature with capaci- 
ties by no means above the common. It seems to have been 
a mistake in Oliver, that with the projects he had long formed 
in his eldest son's favor, he should have taken so little pains to 
fashion his mind and manners for the exercise of sovereiga 
power, while he had placed the second in a very eminent and 
arduous station ; or that, if he despaired of Richard's capac- 
ity, he should have trusted him to encounter those perils of 
disaffection and conspiracy which it had required all his own 
vigilance to avert. But, whatever might be his plans, the 
sudden illness which carried him from the world left no time 
for completing thera. The Petition and Advice had simply 
empowered him to appoint a successor, without -prescribing 
the mode. It appeared consonant to law and reason that so 
important a trust should be executed in a notorious manner, 
and by a written instrument ; or, if a verbal nomination 
might seem sufficient, it was at least to be expected that this 
should be authenticated by solemn and indisputable testi- 

sect to their hero-saint. See Crabbe's of 700,000?. in stores, and the army in 
tale of the Frank Courtship. advance of their pay (subject, however, 
Slingsly Bethell, an e.xception perhaps to a debt of near 500,0U0/.). the customs 
to the general politics of this sect, pub- and excise bringing in nearly .'i inillion 
Hshed, in 1637, a tract, entitled The annually, left a debt which, in llichartl's 
World's JlisUike in Oliver Cromwell, pirliameiit, wiis given in at 1.900,000/., 
with the purpose of decrying his policy though he believes this to have been pup- 
and depreciating his genius. Ilarleian po.'iely e.xaggerated in order to procure 
Miscellany, 1. 2S0. But he who goes supplies. I cannot s.ay how far these 
about to prove the world mistaken in its sums a(;e correct ; but it is to be kept in 
estimate of a public character has always mind that one great resource of the par- 
a diOioult cause to maintain. Bethell, liament, confiscatit n. seiiuestiation, corn- 
like Mrs. Macaulay and others, labors position, could not be repi.'ated forever, 
to set up the Uuinp parliament against Neither of these governments, it will b« 
the soldier wlio dispersed them ; and found on inquiry, were economical, 08« 
asserts that Cromwell, having found pecially in respect to the cmolumeuta of 
5C0.000/. in ready money, with the value those concerued in them. 



34 mS SUPPORTERS. CHAt. i 

mony. No proof, however, was ever given of Richard's 
appointment by his father, except a recital in the proclama- 
tion of the privy council, which, whether well founded or 
Otherwise, did not carry conviction to the minds of the peo- 
ple ; and this, even if we call it but an informality, aggra- 
vated the numerous legal and natural deficiencies of his title 
to the government.^ 

This very difference, however, in the personal qualifica- 
is supported ^^"^^^ °^ ^^^^ father and the son, procured the latter 
by some pru- some friends whom the former had never beeu 
dent men, ^-^^^ ^^ gain. Many of the presbyterian party 
' began to see the finger of God, as they called it, in his peace- 
able accession, and to think they owed subjection to one who 
came in neither by regicide, nor hypocrisy, nor violence.^ 
Some cool-headed and sincere friends of liberty entertained 
similar opinions. Pierpoint, one of the wisest men in Eng- 
land, who had stood aloof from the protector's government 
till the scheme of restoring monarchy came into discussion, 
had great hopes, as a wi'iter of liigh authority informs us, of 
settling the nation in the enjoyment of its liberties under the 
<young man ; who was " so flexible," says that writer, " to 
good counsels, that there was nothing desirable in a prince 
which might not have been hoped in him, but a great spirit 
and a just title ; the firsfe'of which sometimes doth more hurt 
ihan good in a sovereign ; the latter would have been sup- 
plied by the people's deserved approbation." Pierpoint be- 
lieved that the restoration of the ancient family could not be 
effected without the ruin of the people's liberty, and of all 
who,had been its champions ; so that no royalist, he thought, 
who had any regard to his country, would attempt it : while 
/this establishment of monarchy in Richard's person might 
reconcile that i^arty, and compose all differences among men 

1 Whiteloclc, 674 ; Ludlow, 611, 624. dercd it that the council and army hath 

Lord i'.vucouberg writes ia cipher to received him with all manner of affec- 

Henry Cromwell, on August 30, that tioa. He is this day proclaimed, and 

" Thurloe has seemed resolved to press liitherto there seems great face of peace; 

him in his intervals to such a nomination the Lord contiaue it."' Thurloe State 

(of a successor); but whether out of ap- Papers, vii. 365,372. Lord Fauconberg 

prehensions to displease him if recover- afterwards confirms the fact of Rich- 

ing, or others hereafter, if it should not ard"3 nomination. P. 375 ; and see p. 

Btrcceed, he has not yet done it, nor do I 415. 

believe will." Thurloe, liowever, an- " " M.any sober men that called hig 
nounces on Sept. 4, that " his highness father no better than a traitorous hypo- 
was pleased before his death to declare crite, did begin to think that they owed 
mj. lord Richard successor. He did it him [ R. G. ] subjection," &c. Baxter, 
3n Monday ; and the Lord hath so or- 100. 



COMMONWEALTH. COALITION AGAINST KICHARD. 35 

of weight and zeal for the public good.* He acted accord- 
ingly on those principles ; and became, as well as his friend Su 
John, wlio had been discountenanced by OHver, a steady sup- 
porter of the young protector's administration. These two, 
with Thurloe, Whitelocl'C, lord Broghil), and a very few more, 
formed a small phalanx of experienced counsellors around hia 
unstable throne. And I must confess that their course of 
policy in sustaining Richard's government appears to me the 
most judicious that, in the actual circumstances, could have 
been adopted. Pregnant as the restoration of the exiled 
family was with incalculable dangers, the English monarchy 
would have revived with less lustre in the eyes of the vulgar, 
but with more security for peace and freedom, in the line of 
Cromwell. Time would have worn away the stains of igno- 
ble birth and criminal usurpation ; and the young man, 
whose misfortune has subjected him to I'ather fin exag- 
gerated charge of gross incapacity, would probably have 
reigned as well as most of those who are born in the purple.^ 
But this termination was defeated by the combination of 
some who knew not what they wished, and of some ^^f. opposed 
who wished what they could never attain. The V' '=°'^i- 
general officers who had been well content to 
fraake Cromwell the first of themselves, or greater than them 
selves by their own creation, had never forgiven his manifest 
design to reign over them as one of a superior order, and • 
owing nothing to their pleasure. They had begun to cabal 
during his last illness. Though they did not oppose Rich- 
ard's succession, they continued to hold meetings, not quite 
public, but exciting intense alarm in his council. As if ,dis- 
daining the connnand of a clownish boy, they proposed that 
the station of lord-general should be separated from that of 
pi'otector, with the power over all' commissions in the army, 
and conferred on Fleetwood ; who, though his brother-in-law, 
was a certain instrument in their hands. The vain ambitious 
Lambert, aspiring, on the credit of some military reputation, 
to wield the scej)tre of Cromwell, influenced this junto ; 
while the commonwealth's party, some of whom were, or 
had been, in the army, drew over several of these ignorant 

1 Hutchinson, 343. She docs not name commended in the correspondence of 

Pierpoint, bu', X have little doubt that he Tliurloe (pp. 491, 497) ; and in fact he 

Is meant. did nothing umLss during his short ad 

s Bichard's :onduct is more than once miuistratiou. 



36 MEETING OF TARLIAMENT. Chap. X 

and fanatical soldiers. Thurloe describes the posture of 
affairs in September and October, while all Europe was ad- 
miring the peaceable transmission of Oliver's power, as most 
alarming ; and it may almost be said that Richard had already 
fallen when he was proclaimed the lord protector of Eng- 
laiuV 

It was necessary to summon a parliament on the usual 
Calls a score of obtaining money. Lord Broghill had 

parliament, aclvi.^ed this measure immediately on Oliver's 
death,- and perhaps the delay might be rather prejudicial to 
the new establishment. But some of the council feared a 
parliament almost as much as they did the army. They 
called one, however, to meet Jan. 27, 1 659, issuing writs in 
the ordinary manner to all boroughs which had been accus- 
tomed to send members, and consequently abandoning the 
reformed model of Cromwell. This Ludlow attributes to 
their expectation of greater influence among the small 
boroughs ; but it may possibly be ascribed still more to a de- 
sire of returning by little and little to the ancient constitution, 
by eradicating the revolutionary innovations. The new par- 
liament consisted of courtiers, as the Cromwell party were 
always denominated, of presbyterians, among wliom some of 
cavalier principles crept in, and of republicans ; the two 
latter nearly balancing, with their united weight, the minis- 
terial majority.^ They began with an oath of allegiance 
to the protector, as presented by the late parliament, which, 
as usual in such cases, his enemies generally took without 

1 Thurloe, vii. 320, et post, passim, in royalist, and might hope to bring over 

letters both from himself and lord Fau- his brother-iu-law. 

conberg. Thus, immediately on lUchard's - Thurloe, vii. 573. 

accessiou, the former writes to Henry 3 Lord Fauconberg says, " The com- 

Cromwell, " It hath pleased God hitlierto monwealth men in the parliament were 

to give his highness your brother a very very numerous, and beyond measure 

easy and peaceable entrance upon his bold, but more than doubly overbalanced 

government. There is not a dog that by the sober party ; so that, though this 

wags his tongue, so great a calm we are make their result slow, we see no great 

in. . . . But 1 must needs acquaint your cau.se as jet to fear." P. G12. And Dr. 

excellency that there are some secret Barwick, a correspondent of lord Clar- 

murmurings in the army, as if his high- eudou, tells him the republicans were tho 

ness were not general of the army as his minority, but all speakers, zealous and 

father was," &c. P. 374. Here was the diligent — it was likely to end iu a titu- 

secret: the officers did not like to fall lar protector without militia or negative 

b.ack under the civil power, by obeyiug voice. P. 615. 

one who was not a soldier. This soon According to a letter from Allen Bro- 

displayed itself openly; and lord Fau- derick to Hyde (Clar. St. Pap. iii. 443), 

conberg tho ight the game was over as there were 47 republicans, from 100 to 

early as Sept. 28. P. 413. It is to be 140 neuters or moderates (including 

observed that Fauconberg was secretly a many royahsts) and 170 court-lawyeri 

or officers. 



CoMMONWEALTn. RICHARD CROMWELL'S PARLIASIENT. 37 

scruple.* But upon a bill beii'ig offered for the recognition 
of Richard as the undoubted lord protector and chief magis- 
trate of the commonwealth, they made a stand again.-;t the 
word recognize, which was carried with difficulty, and caused 
him the mortilication of throwing out the epithet undoubted.'' 
They subsequently discussed his negative voice in ])assing 
bills, which had been purjDOsely slurred over in the Petition 
and Advice ; but now everything was disputed. The thorny 
question as to the powers and privileges of the other house 
came next into debate. It was carried by 177 to 113 to 
transact business with them. To this resolution an explana- 
tion was added, that it was not thereby intended to excluda 
such peers as had been faithful to the parliament from their 
privilege of being duly summoned to be members of that 
house. The court supporting this not impolitic, but logically 
absurd, proviso, which confounded the ancient and modern 
systems of government, carried it by the small majority of 
195 to 188.^ They were stronger in rejecting an important 
motion, to make the approbation of the commons a prelim- 
inary to their transacting business with the persons now 
sitting in the other house as a house of parliament, by 183 
voices to 146. But the opposition succeeded in inserting 
the words " during the present parliament," which left the 
matter still unsettled.* The sitting of the Scotch and Irish 
members was also unsuccessfully opposed. Upon the whole, 
the court party, notwithstanding this coalition of very hetero- 
geneous interests against them, were sufficiently powerful to 
disappoint the hopes which the royalist intriguers had enter- 
tained. A strong body of lawyers, led by Maynard, adhered 

1 Ludlow tells lis that he contrived everythins else that might tend to settle 

to sit iQ the house without taking the the gOTornment. Clar. State Papers, 411. 

path, and that some others did the same. This of course was their true gaa:o. 
P. 619. It is s;iid tliat, Richard pre-siing tha 

'- Whitelock, Parliam. History, 1530, earl of Northumberland to sit in th« 

1541. other house, he declined, urging that, 

3 The numbers are differently, but, I when the government was puch as his 

suppose, erroneously stated in Thurloe, predecessors had served under, he would 

tii. 640. It is said, in a pamphlet of the serve him with his life and fortune. Id. 

time, that this clause was introduced to 433. 

please the cavaliers, who acted with the * Pari. Hist. Journals, 27 .Tan. ; 14, 

court; Somers Tracts, vi. 482. Ludlow 18 Feb. ; 1, 8, 21, 23, 23 .March. The 

Beems also to think that these parties names of the tellers in these divi.-:ions 

were united in this parliament (p. 029) ; show the connections of leading inuivid- 

but this seems not very probable, and is ua^s : we find iadiifcrently presbyterian 

contrary to some things we know. Clar- and republican names for the minority, 

endon had advised that the royalists as Fairfax, Lambert, Nevil, IIa£l3rig, 

should try to get into parliament, and Townshend, Booth 
there to oppose all raising of money, and 



88 



WALLINGFORD HOUSE CABAL 



Chap. X 



to tho government, which was supported also on some occa- 
sions by a part of the presbyterian interest, or, as then called, 
the moderate party ; and Richard would probably liave con- 
Thearmy cluded tbe scsslon with no loss of power, if either 
overthrow lie or his parliament could have withstood the 
more formidable cabal of Wallingford House. 
This knot of officers, Fleetwood, Desborough, Berry, Syden- 
ham, being the names most known among them, formed a 
coalition with the republican faction, who despaired of any 
success in paidiament. The dissolution of tliat assembly was 
the main article of this league. Alarmed at the notorious 
caballing of the officers, the commons voted that, during the 
sitting of the parliament, there should be no general council, 
or meeting of the officers of the army, without leave of the 
protector and of both houses.^ Such a vote could only accel- 



1 There seems reason to believe that 
Richard would have met with more sup- 
port both iu the house and among the 
nation, if he had not been oppressed by 
the odium of some of his fatlier's coun- 
sellors. A general indignation was felt 
at those who had condemned men to 
death in illegal tribunals, whom the re- 
publicans and cavaliers were impatient 
to bring to justice. He was forced also to 
employ and to screen from vengeance his 
wise and experienced secretary Thurloe, 
master of all the secret springs that had 
moved his father's government, but ob- 
noxious from the share he liad taken in 
illegal and arbitrary measures. Petitions 
were presented to the house from several 
who had been committed to the Tower 
upon short written orders, without any 
formal warrant or expressed cause of 
commitment. In the case of one of 
these, Mr. I'ortman, the house resolved 
that his apprehension, imprisonment, and 
detention in the Tower was illegal and 
unjust : Journals, 20 Feb. A still more 
flagrant tyranny was tliat frequently 
practised by Cromwell, of sending persons 
disaffected to hiui as .slaves to the West 
Indies. One Mr. Thomas petitioned the 
house of commons, complaining that he 
had been thus sold as a .slave. A member 
of the court side justified it on the score 
of his being a malignant. Major-general 
Browne, a secret royalist, replied tUat he 
was nevertheless an Englishman and 
free-born. Thurloe had the presumption 
to say that he had not thought to live to 
fleo the day when such a thing as this, 
80 justly and legally done by lawful au- 
thority, should be brought before parlia- 
ment. Vaao replied that he did not 



think to have seen the day when free- 
born Englishmen should be sold for slaves 
by such an arbitrary government. There 
were, it seems, not less than fifty gentle- 
men sold for slaves at IJarbadoes. Claren- 
don State Papers, p. 447. The royalists 
had planned to attack Thurloe for some 
of these unjustifiable proceedings, which 
would have greatly embarrassed the gov- 
ernment. Ibid. 423, 428. They hoped 
that Tdchard would be better disposed 
toward the king, if his three advisers, 
St. John, Thurloe, and Pierpoint, all im- 
placable to their cause, could be removed. 
Bat they were not strong enough in the 
house. If Jtichard, however, had con- 
tinued in power, he must probably have 
sacrificed Thurloe to public opinion ; and 
the consciousness of this may have led 
this minister to advise the dissolution of 
the parliament, and perhaps to betray his 
master, from the suspicion of which he is 
not free. 

It ought to be remarked what an out- 
r.ageous proof of OromweH's tyranny is 
exhibited in this note. Many writers 
glide f.ivorably over his administration, 
or content themselves witli treating it as 
an usurpation which can furnish no prec- 
edent, and consequently does not merit 
particular notice; but the effect of tliis 
generality is, that the world forms an 
imperfect notion of the degree of arbi- 
trary power which he exerted ; and I 
believe there are many wlio take Charles 
I., and even Charles II., for greater 
violators of the laws than the protector. 
Neal and Ilarris are full of this dishon- 
est bigotry. [Since this note was first 
printed the publication of Burton's Di- 
ary has confirmed its truth, which had 



Commonwealth. LONG PARLIAMENT RESTORED. 39 

erate their own downfall. Three days afterwards the jun/,o 
of Wallingford House insisted with Richai'd that he should 
dissolve parliament; to which, according to the advice of 
most of his council, and ])erhaps by an overruling necessity, 
he gave his consent.^ Tiiis was immediately followed by a 
declaration of the council of officers, calling back the long 
parliament, such as it had been expelled in 1653, to those 
seats which had been filled meanwhile by so many transient 
successors.'^ 

It is not in general difficult for an armed force to destroy a 
government ; but something else than the sword is required 
to create one. The military conspirators were destitute of 
any leader whom they would acknowledge, or who had ca- 
pacity to go through the civil labors of sovereignty ; Lambert 
alone excepted, who was lying in wait for another occasion. 
They might have gone on with Richard as a pageant of 
nominal authority. But their new allies, the commonwealth's 
men, insisted upon restoring the long parliament.^ It seemed 
now the policy, as much as duty, of the officers to obey that 
civil power they had set up ; for to rule ostensibly was, as I 
have just observed, an impracticable scheme. But the con- 
tempt they felt for their pretended masters, and even a sort 
of necessity arising out of the blindness and passion of that 

rashly been called in ques-Lion by a pas- goldsby, lord Fauconberg, and others, 
sionate and prejudiced reviewer. See vol. who were suspected to be for the Icing, 
iv. p. 253, &c.] Life of Charles II., 194. lie afterwards, 
1 Richard advised vrith Broghill, Fi- p. 203, quotes Calamy's Life of Howe, 
ennes, Thurloe, and others of his council, for the jis.sertion that Richard stood out 
all of whom, except Whitelock, who in- against his council, with Thurloe alone, 
forms us of this, were in favor of the that the parliament should not be dis- 
dissolution. This caused, he says, much solved. Tnis is very unlikely, 
trouble to honest men; the cavaliers and - This was carried against the previous 
republicans rejoiced at it; many of Rich- question by 103 to 87. Journals, Abr. 
ard's council were his enemies. P. 177. 111. Some of the. protector's friends were 
The army at first intended to rai.«e mon- alarmed at so high a vote against the 
ey by their own authority; but this was army, ■which did in fact bring tlie matter 
deemed impossible, and it was resolved to a crisis. Thurloe, vii. OK), et post, 
to recall the long parliament. Lam- 3 xbe army, according to Ludlow, had 
bert and Ilaslerig accordingly met Len- not made up their minds how to act after 
thall, who was persuaded to act again the dissolution of the parliament, and 
as speaker; though, if Ludlow is right, some were inclined to go on with Rich- 
against his will, being now connected ard ; but the republican party, who had 
with the court, and in the pretended coalesced with that faction of officers 
house of lords. The parliament now con- who took their denomination from Wal- 
skted of 91 members. Pari. IlisD. 1547. lingford House, their place of meeting, 
Harris quotes a manu.scripc journal of insisted on the restoration of the old par- 
Montague, afterwards earl of Sandwich, liament; though they agreed to make 
wherein it is sjiid that Kichard's great some provision for Richard. Memoirs, 
error was to dissolve the parliament, and pp. 63o-640. Accordingly it w.is voted 
?bat he might have overruled the army to give him 'an income of 10,000/. p«» 
if ho would himself have employed In- annum. Journals, July 16. 

VOL. II. — c. 4 



40 niPOSSIBlLITY OF ESTABLISHIXG Chaf. X. 

little oligarchy, drove them to a step still more ruinous 1o 
Expelled their cause than that of deposing Richard, the ex- 
aga'Di pulsion once more of that assembly, now worn out 

and ridiculous in all men's eyes, yet seeming a sort of frail 
protection against mere anarchy and the terror of the sword. 
Lambert, the chief actor in this last act of violence, and in- 
deed many of the rest, might plead the right of self-defence. 
The prevailing faction in the parliament, led by Ha<lerig, a 
bold and headstrong man, perceived that, with very inferior 
pretensions, Lambert was aiming to tread in the steps of 
Cromwell ; and, remembering their neglect of opportunities, 
as they thought, in permitting the one to overthrow them, 
fancied that they would anticipate the other. Theii: intem- 
perate votes cashiering Lambert, Desborough, and other 
officers, brought on, as every man of more prudence than 
Haslerig must have foreseen, an immediate revolution that 
crushed once more their boasted commonwealth.^ They 
and again revived again a few months after, not by any 
restored. exertiou of the people, who hated alike both 
parties, in their behalf, but through the disunion of their real 
masters, the army, and vented the impotent and injudicious 
rage of a desperate faction on all who had not gone every 
length on their side, till scarce any man of eminence was 
left to muster under the standard of Haslerig and his little 
knot of associates.^ 

I can by no means agree with those who find in the char- 
acter of the English nation some absolute incom- 
bmtrof patibihty with a republican constitution of govern 
establishing mcnt. Under favorinoj circumstances, it seems to 

a repubuc. ,, . -..P. , t i- • i 

me not at all incredible that such a polity migat 

1 Journals, Sept. 23, et po.«t. White- and in whom liberality seemed to be a 

lock, 683. Pari. Hist. 1562. Thurloe, vice. Yet, to do him" ju.stice, I must 

vii. 703, et po.'it. Ludlow's account of acknowledge that I am under no raan- 

this period is the most interesting part ner of doubt concerning the rectitude 

of his Memoirs. The chief officers, it ap- and sincerity of his intentions.'' P. 718- 

pears from his narrative, were soon dis- Ludlow gave some offence to the hot- 

gusted with their republican allies, and headed repubUcans by his half compli- 

'■ behaved with all imaginable perverse- ance with the army, and much disap- 

ness and insolence " in the council of proved the proceedings they adopted 

Btate, whenever they came there, which after their second restoration in Decem- 

was but seldom, scrupling the oath to ber, 1659, against Vane and others. P. 

be true to the Commonwealth against 800. Yet, though nominated on the 

Charles Stuart or any other person. P. committee of safety, on the expulsion 

657. He censures, however, the violence of the parliament in October, he never 

of Haslerig, "a man of a disobliging sat on it. as Vane and Whitelock did. 

temper, sour and morose of temper, - Journals, and other authorities abov* 

liable to be transported with passion, cited. 



C010I..XWE.VLTH. A REPUBLIC. 41 

have existed for many ages in great prosperity, and without 
violent convulsion. For the English are, as a people, little 
subject to those bursts of passion which inflame the more 
imaginative multitude of southern climate^, and render them 
both apt for revolutions and incapable of conducting them. 
Nor are thev again of that sluggish and stationary temper 
which chokes all de->ire of improvement, and even all zeal 
for freedom and justice, through which some free govern- 
ments have degenerated into cormpt oligarchie?. The most 
conspicuously succes-ful experiment of republican institutions 
(and those far more democratical than, according to the gen- 
eral theory of politics, could be reconciled with perfect tran- 
quillity) has taken place in a people of English original ; and 
though much must here be ascribed to the peculiarly for- 
tunate situation of the nation to which I allude, we can 
hardly avoid giving some weight to the good sense and well- 
balanced temperament which have come in their inheritance 
with our laws and our language. But the establishment of 
free commonwealths depenfls much rather on temporary 
causes, the influence of persons and particular events, and 
all those intricacies in the course of Providence which we 
term accident, than on any general maxims that can become 
the basis of pnor calculation. In the year 1659 it is mani- 
fest that no id?a could be more chimerical than that of a 
repubUcan settlement in England. The name, never familiar 
or venerable in English ears, was grown infinitely odious : 
it was associated with the tyranny of ten years, the selfish 
rapacity of the Rnmp. the hypocritical despotism of Crom- 
well, the arbitrary sequestrations of committee-men, the 
iniquitous decimations of mihtary prefects, the sale of British 
citizens for slavery in the West Indies, the blood of some 
shed on the scaffold without legal trial, the tedious imprison- 
ment of many with denial of the habeas corpus, the exclu- 
sion of the ancient gentry, the persecution of the Anghcaa 
church, the bacchanahan rant of sectaries, the morose pre- 
eiseness of puritans, the extinction of the frank and cordial 
joyousness of the national character. Were the people 
again to endure the mockery of the good old cause, as the 
commonwealth's men affected to style the interests of their 
little faction, and 1>2 subject to Lambert's notorious want of 
principle, or to Vane"s contempt of ordinances (a godly mode 
of expressing the same thing), or to Haslerig's fury, or tc 



42 ROYALISTS UNITE Chap. X 

Harrison's fanaticism, or to tlie fancies of those lesser 
schemers who, in this utter confusion and abject state of 
their party, were amusing themselves with plans of perfect 
commonwealths, and debating whether there should be a 
senate as well as a representation ; whether a fixed number 
should go out or not by rotation ; and all those details of 
political mechanism so important in the eyes of theorists ? * 
Every project of this description must have Avanted what 
alone could give it either the pretext of legitimate existence 
or the chance of permanency, popular consent ; tl:e repub- 
lican party, if we exclude those who would have had a pro- 
tector, and those fanatics who expected the appearance of 
Jesus Christ, was incalculably small ; not, perhaps, amount- 
ing in the whole nation to more than a few hundred persons. 
The little court of Charles at Brussels watched with 
Intrigues trembling hope those convulsive struggles of their 
of the enemies. During the protectorship of Oliver their 

roya is s. ^^^^ chancc appeared to be, that some of the numer- 
ous schemes for his assassination might take effect. Their 
correspondence indeed, especially among the presbyterian or 
neutral party, became more extensive ; ^ but these men were 
habitually cautious ; and the marquis of Ormond, who went 
over to England in the beginning of 1 058, though he re- 
ported the disaffection to be still more universal than he had 
expected, was forced to add that there was little prospect of 
a rising until foreign troops should be landed in some part 
of the country, an aid which Spain had frequently promised, 
but, with an English fleet at sea, could not very easily fur- 
nish.^ The death of their puissant enemy brightened the 
visions of the royalists. Though the apparent peaccitbleness 
of Richard's government gave them some mortification, they 
continued to spread tlieir toils through zealous emissaries, 
and found a very general willingness to restore the ancient 
They unite Constitution under its hereditary so\ereign. Be- 
with the sides the cavaliers, who, though numerous and 
terilns'. ardent, were impoverished and suspected, the 

1 The Rota Cluh, as it was called, was of Ormond to Hyde about this time he 
composed, chiefly at least, of these seems to have seen into the king's char- 
dealers in new constitutions, which were acter, and speaks of him severely : " I 
debated in due form. Harrington was fear his immoderate delight io empty, 
one of the most conspicuous. effeminate, and vulgar conversations, ia 

2 Thurlo», vi. 579. Clarendon State become an irresistible part of his na- 
Papers, 391 395. ture," &c. Clarendon State Papers, iii 

3 Carte's Letters, li. 118. In a letter 387. 



Common WEALTH. WITH PRESBYTERIANS. 43 

chief presbyterians, lords Fairfax and Willoiiglihy. the 
earls of Manchester and Denbij^h, sir William Waller, 
sir George Booth, sir Ashley Cooper, Mr. Popham of 
Somerset, Mr. Howe of Gloucester, sir Horatio Townshend 
of Norfolk, with more or less of zeal and activity, pledged 
themselves to the royal cause.^ Lord Fauconberg, a royalist 
by family, who had married a daughter of Ci'omwell, under- 
took the important office of working on his brothers-in-law, 
Richard and Henry, whose position, in respect to the army 
and republican party, was so hazax-dous. It seems, in fact, 
that Richard, even during his continuance in power, had not 
refused to hear the king's agents,^ and hopes were enter- 
tained of him ; yet at that time even he could not reasonably 
be expected to abandon his apparent interests ; but soon after 
his fall, while his influence, or rather that of his father's 
memory, was still supposed considerable with Montagu, 
Monk, and Lockhart, they negotiated Avith him to procure 
the accession of those persons, and of his brother Henry, for 
a pension of 20,000/. a year and a titlc.^ It soon appeared, 
however, that those prudent veterans of revolution would not 
embark under such a pilot, and that Richard was not worth 
purchasing on the lowest terms. Even Henry Cromwell, 
with whom a separate treaty had been carried on, and who 
is said to have determined at one time to proclaim the king 
at Dublin, from want of courage, ox*, as is more probable, of 

1 Clarendon Papers, 391, 418, 460, et civil government, because they conceive 
post. Townshend, a youni; man who his principles contrary to theirs. He 
Beems to have been much looked up to, sa3-s Thurloe governs Cromwell, and St. 
was not, in fact, a presbyterian, but is John and I'ierpoint govern Thurloe ; and 
reckoned among them as not being a therefore it is not likely he will think 
cavalier, having como of aje since the himself in danger till these tell him so, 
war, and his family neutral. nor seek a uiversion of it but b_v their 

2 This curious fact appears for the first counsels." Feb. 10, 1R59. These ill- 
time, I believe, in the Clarendon State grounded hopes of Kichard"s accession to 
Papers, unless it is anywhere intimated their cause appcir in several other letters, 
in Carte's collection of the Ormond let- and even Hyde seems to have given in to 
^rs. In the former collection we find them, 4.34, 454, &c. Broderick, another 
several allusions to it ; the first is in a active emis.sary of the royalists, fancied 
letter from Kumbold, a royalist emi.ssary, that the three above mentioned would 
to Hyde, dated Dec. 2, 16.58, p. 421; from restore the king if they dared, 477 ; but 
which I collect lord Fauconberg"s share this is quite unlikely. 

In this intrigue ; which is also confirmed '■> P. 469. This was carried on through 

by a letter of Mordriunt to the king, in colonel Henry Cromwell, his cousin. It 

p. 423. '-The lord Falconbridge protests is said that Kichnrd liad not courage to 

that Cromwell is sc remiss a person that sign the letters to Monk and his other 

he cannot pl.ay his own g.-iine, much less friends, which he afterwards repented, 

another man's, and is thereby di.scour- 491. The intrigues still went on with 

aged from acting in business, having al.so him for a little longer. This was in May 

many enemies who oppo.se his gaining 1659. 
either power or interest in the army or 



44 CONSPIRACY OF 1G59. Chip. X. 

seriousness in what must have» seemed so unnatural an un- 
dertaking, submitted quietly to the vote of parliament that 
deprived him of the command of Ireland.^ 

The conspiracy, if indeed so general a concert for the res- 
Conspiracy toratioii of ancient laws and liberties ought to have 
of 1659. >^Q equivocal an appellation, became ripe in the 
summer of 1659. The royalists were to appear in arms in 
different quarters, several principal towns to be seized ; but, 
as the moment grew nigh, the courage of most began to fail. 
Twenty years of depressioii and continual failure mated the 
spirits of the cavaliers. The shade of Cromwell seemed to 
hover over and protect the wreck of his greatness. Sir 
George Booth, almost alone, rose in Cheshire ; every other 
scheme, intended to be executed simultaneously, failing 
through the increased prudence of those concerned, or the 
precautions taken by the government on secret intelligence 
of the plots ; and Booth, thus deserted, made less resistance 
to Lambert than perhaps was in his power.^ This discom- 
fiture, of course, damped the expectations of the king's 
party. The presbyterians thought themselves ill-used by 
their new allies, though their own friends had been almost 
equally cautious.^ Sir Richard Willis, an old cavalier, and 
in all the secrets of their conspiracy, was detected in being 
a spy both of Cromwell and of the new government : a 
discovery which struck consternation into the party, who 
could hardly trust any one else with greater security."* In 
a less favorable posture of affairs these untoward circum- 
stances might have ruined Charles's hopes ; they served, 
as it was, to make it evident that he must look to some 
more efficacious aid than a people's good wishes for his 
restoration. 

The royalists in England, who played so deep a stake on 
the king's account, were not unnaturally desirous that he 

1 Clarendon State Papers, 434, 500, et ceived that by extending the basis of tht? 
post. Thurloe, vi. 686. See also an coalition they should lose all chance of 
enigmatical letter to Henry Cromwell, indemnit\- for their own sufferings ; be- 
629, which certainly hints at his union sides which, their timidity and irresolu- 
with the king ; and Carte"s Letters, ii. tion are manifest in all the Clarendon 
293. correspondence at this period. See par- 

2 Clar. State Papers, 552, 556, &c. ticularly 491. 520. 

3 Clarendon confesses. Life, p. 20, that * Willis had done all in his power to 
the ca-paliers disliked this whole intrigue ob.struct the rising. Clarendon was Terj 
with the presbyterians, which was plan- slow in beUeving this treachery, of whicli 
ned by Mordaunt, the most active and he had at length conclusive proofs. 552j 
Intelligent agent that the king possessed 662. 

in England. The former, doubtless, per- 



Common wji.\.LTU. AEiAIKS Oi" CHARLES. 45 

should risk somelhing iu the game, and continually pressed 
tliat either he or one of his brothers would land on the 
coast. His standard would become a rallying-point for the 
well-affected, and creaic ?uch a demonstration of public sen- 
timent as would overthrow the present unstable govermnent. 
But Charles, not by nature of a chivalrous temper, shrunk 
from an enterprise which was certainly very hazardous, un- 
less he could have obtained a greater assistance of troops 
from the Low Countries than was to be hoped.^ He waa 
as Uttle inclined to permit the duke of York's engaging in 
It, on account of the differences that had existed between 
them, and his knowledge of an intrigue that was going for- 
ward in England, principally among the catholics, but with 
the mischievous talents of the duke of Buckingham at iis 
head, to set up the duke instead of himself.'^ He gave, 
however, fair words to his party, and continued for some 
time on the French coast, as if waiting tor his opportunity. 
It was in great measure, as I suspect, to rid himself of 
this importunity that he set out on his long and very need- 
less journey to the foot of the Pyrenees. Thither the two 
monarciis of France and Spain, wearied with twenty years 
of hostility without a cause and without a purpose, had sent 
their ministers to conclude the celebrated treaty which bears 
the name of those mountains. Charles had long cherished 
hopes that the first fruits of their reconciliation would be a 
joint armament to place him on the English throne ; many 
of his adherents almost despaired of an}' other means of 

1 Clar. Papers, 614, 530, 536, 543. affronts from that party ; but upon a 

2 Clarendon Papers, 425, 427, 458, 462, finer spun design of setting up tiie in- 
475, 526, 579. It is evident that the terest of the duke of York against tha 
catholics had greater hopes from the king; in which design I fear you will 
duke than from the king, and considered find confederated the duke of Bucks, 
the former as already their own. A re- who perhaps may draw away with him 
markable letter of Morley to Hyde, April lord Fairfax, the presbyterians, lercHors, 
24, 1659, p. 458, shows the suspicions and many catholics. I am apt to think 
already entert;iined of him by the writer these things are not transacted without 
in point of religion ; and Hyde is plainly the privity of the queen ; and 1 pray God 
not free from apprehension that he might that they have not an ill influence upou 
favor the scheme of supplanting his your affairs in France.-' 475. Bucking- 
brother. The intrigue might have gone ham was surmised to have been formally 
a great way, though we may now think reconciled to the church of Rome. 427. 
it probable that their'alarm magnified Some supposed that he, with his friend 
the danger. " Let nic tell you," says sir Wildman, were for a republic. But such 
Antony Ashley Cooper in a letter to meu are for nothing but the intrigue of 
Hyde, ' that Wildman is as much an the moment. These projects of Ituck 
enemy now to the king as he was before ingham to set up the duke of York ar« 
a seeming friend; yet not upon the ac- hinted at in a pamphlet by Shaftesbury 
count of a commonwealth,. for his ambi- or one of his partv, written about 1680 
tiou iL.<et3 with every-day repulses and Somers Tracts, viii. 342. 



46 FLEETWOOD AND LAMBERT. Chap. X 

restoration. But Lewis de Haro was a timid statesman, 
and Mazarin a cunning one : there was little to expect from 
their generosity, ami the price of assistance might probably 
be such as none but desjjerate tmd unscrupulous exiles would 
offer and the English nation would with unanimous indigna- 
tion reject. It was well for Charles that he contracted no 
public engagement with these foreign power's, whose coop- 
eration must either have failed of success or have placed 
on his head a degraded and unstable crown. The full tol- 
eration of popery in England, its establishment in Ireland, 
its profession by the sovereign and his family, the surrender 
of Jamaica, Dunkirk, and perhaps the Norman Islands, were 
conditions on \yhich the people might have thought the resto- 
ration of the Stuart line too dearly obtained. 

It was a more desirable object for the king to bring over, 
if possible, some of the leaders of the commonwealth. Ex- 
cept Vane, accordingly, and the decided I'epublicans, there 
was hardly any man of consequence whom his agents did 
not attempt to gain, or, at least, from whom they did not en- 
tertain hopes. Three stood at this time conspicuous above 
the rest, not all of them in ability, but in apparent power 
of serving the royal cause by their defection — Fleetwood, 
Lambert, and Monk. The first had discovered, as far as 
his understanding was capable of perceiving anything, that 
he had been the dupe of more crafty men in the cabala 
against Richard Cromwell, whose complete fall from power 
he had neither designed nor foreseen. In pique and vexa- 
tion he listened to the overtures of the royalist agents, and 
sometimes, if we believe their assertions, even promised to 
declare for the king.^ But his resolutions were not to be 
relied upon, nor was his influence likely to prove consider 
able ; though, from his post of lieutenant-general of the 
army, and long-accustomed precedence, he obtained a sort 
of outward credit far beyond his capacity. Lambert was of 
a very different stamp : eager, enterprising, ambitious, but 

I Hyde writes to the duke of Ormond, the honest thoughts -which some time 

"I pray inform the kiug that Fleetwood possess him," 592 (Oct. 31), and that 

makes great professions of being con- Manchester, Popham, and others, tried 

verted, and of a resolution to serve the what they could do with Fleetwood; but, 

king upon the first opportunity." Oct. " though they left him with good resolu- 

11, 1659. Carte's Letters, ii. 231. See tions, they were so weak as not to cca- 

Clarendon State Papers, 551 (Sept. 2) tinue longer than the next temptation." 

and 577. But it is said afterwards that 635 (Dec. 27). 
he iiad " not courage enough to follow 



Commonwealth. INTERFEREXCE OF MONK. 47 

destitute of the qualities that inspire respect or coni'idence. 
Far from tlie weak enthusiasm of Fleetwood, he gave of- 
fence by displaying less show of religion than the temper 
of his party i-eqiiired, and still more by a current suspicion 
that his secret faith was that of the churcli of Rome, to 
which the partiality of the catholics towards him gave i-:up- 
port.-^ The crafty unfettered ambition of Lambert rendered 
it not unlikely that, finding his own schemes of sovereignty 
impracticable, he would make terms with the king ; and 
there were not wanting those who recommended the latter 
to secure his services by the offer of marrying his daughter,^ 
but it does not appear that any actual overtures were made 
on either side. 

There remained one man of eminent military reputation, 
in the command of a considerable insulated army, interference 
to whom the ro_)-alist3 anxiously looked with alter- of ^^oii'- 
nate hope and despondency. Monk's early connections were 
with tlie king's party, among whom he had been defeated 
and taken prisoner by Fairfax at Namptwich. Yet even in 
this period of his life he had not escaped suspicions of dis- 
affection, which he effaced by continuing in prison till the 
termination of the war in England. He then accepted a 
commission from the parliament to serve against the Irish, 
and now, falling entirely into his new line of politics, became 
strongly attached to Cromwell, by whom he was left in 
the military government, or rather viceroyalty, of Scotland, 
which he had reduced to subjection, and kept under with a 
vigorous hand. Charles had once, it is said, attempted to 
seduce him by a letter from Cologne, which he instantly 
transmitted to the protector.^ Upon Oliver's death he wrote 
a very sensible letter to Richard Cromwell, containing his 

1 Clarendon State Papers, 533. Carte'a cini, whom Charles had asked for is 

Lettei-s, ii. 225. vaiu. 

- Lord Ilutton, an old royalist, .sug- ^ Biogr. Brit., art. MoxK. The royal 

gested this humiliating pi-oposition in ists continued to entertain hopes of him, 

terms scarcely le.ss so to. the heir of Cerdic especially after Oliver's death. Claren- 

and Fergus. '-The race is a veri/ good don Papers, iii. 393, 395, 396. In a sen- 

o-eH(ie;»rt/i's /a7«(iy, and kings have con- sible letter of Colepeppur to Hyde, Sept. 

descended to marry .subjects. The lady 20, 1658, he points out Monk as ablo 

is pretty, of an extraordinary sweetness alone to restore tho king, and not ab- 

of disposition, and very virtuously and solutely averse to it, either in his prin- 

ingenuously disposed ; the father is a per- ciple.s or atfections; kept hitherto by ths 

Eon, set aside his unhappy engagement, vanity of .adhering to his professions, and 

of very great parts and noble inclina- by his affection to Cromwell, the latte* 

tions." Clarendon State Papers, 592. whereof is dissolved both by the jeal- 

Yet, after all. Miss Lambert was hardly ousies he cntert;iined of him, anil by hit 

more a niesalliaaco than Ilortense Man- death, &c. Id. 412. 



48 MONK'S DISSIMULATION. Chap. X. 

ftdvice for the government. He recommends liim to obtain 
the affections of the moderate presbyterian ministers, who 
have much inlhicnce over the people, to summon to his house 
of lords the wisest and most faithful of the old nobility and 
some of the leading gentry, to diminish the number of su- 
perior officers in the army by throwing every two regiments 
into one, and to take into his council as his chief advisers 
"Wliitelock, St. John, lord Broghill, sir Richard Onslow, Pier- 
point, and Thurloe.^ The judiciousness of this advice is the 
surest evidence of its sincerity, and must leave no doubt on 
our minds that Monk was at that time very far from har- 
boring any thouglks of the king's restoration. 

But when, through the force of circumstances and the de- 
His dissim- ficicncies in the young protector's capacity, he saw 
uiation. (iig house of Cromwell forever fallen, it was for 
Monk to consider what course he should follow, and by what 
means the nation was to be rescued from the state of an- 
archy that seemed to menace it. That very different plans 
must have passed through his mind before he commenced his 
march from Scotland, it is easy to conjecture ; but at what 
time his determination was finally taken we cannot certainly 
pronounce.^ It would be the most honorable supposition to 

1 Thurloe, yii. 387. Mouk wrote about an obscure point of history, which will 

the same time against tlie earl of Argyle, easily admit of different opinions, 
as not a friend to the government : p. 584. The story told by Locive, on lord 

Two j'ears afterwards he took away his Shaftesbury's authority, that Monk had 

life as being too much so. agreed with the French ambassador to 

- If the account of his chaplain, Dr. take on himself the government, wherein , 
Price, republished in Maseres' Tracts, he was to have the*$upport of Mazarin, 
vol. ii., be worthy of trust, Monk gave so and that his wife, having overheard what 
much encouragement to bis brother, a was going forward, sent notice to Shaftes- 
clergyman, secretly despatched to Scot- bury, who was thus enabled to frustrate 
land by sir John Greuvil, his relation, the intrigue (Locke's \Vorks, iii. 456), 
iu June. 1659, as to have approved sir seems to have been confirmed lately by 
George Booth's insurrection, and to have Mr. D'Israeli, in an e.\tract from the 
been on the point of pubUshing a decla- manuscript memoirs of sir Thomas 
ration in favor of it. P. 718. But this Browne (Curiosities of Literature, N. S., 
Is flatly in contradiction of what Claren- vol. ii.), but in terms so nearly resem- 
don asserts, that the general not only bling those of Locke, that it may be 
sent away his brother witli no hopes, but suspected of being merely an echo. It 
threatened to hang him if he came again is certain, as we find by Phillips's con- 
on such an errand. And, in fact, if any- tinuation of Baker's Chronicle (said to 
thing so favorable as what Price tells us be assisted in this part by sir Thomas 
had occurred, the king could not fail to Clarges, Monk's brother-in-law), that 
have known it. See Clarendon State Pa- Bourdeaux, the Fi'cuch ambassador, did 
pers, iii. 543. This throws some suspi- make such overtures to the general, who 
cion on Price's subsequent narrative (so absolutely refused to enter upon them ; 
far as it professes to relate the general's but, as the writer admits, received a visit 
intentions); so that I rely far less on it from the ambassador on condition that 
than on Mank's own behavior, which he should propose nothing in relation to 
seems irreconcilable with his professions pubhc matters. I quote from Kennet'j 
of republican piinciples. It is, howeve-, Register, 85. But, according to my pres 



CoMMo-NWEALTH. MONK'S DISSDIULATIOX. 49 

believe that he was sincere in tliose solemn protestations of 
adherence to the commonwealth which he poured forth, aa 
well during his max'ch as after his arrival in London ; till 
discovering, at length, the popular zeal for the king's restora- 
tion, he concurred in a change which it would have been 
unwise, and pei-haps impracticable, to resist. This, however, 
seems not easily reconcilable to Monk's proceedings in new- 
modelling his army, and confiding power, both in Scotland 
and England, to men of known intentions towards royalty ; 
nor did his assurances of support to the i-epubhcan party 
become less Irequent or explicit at a time when every one 
must believe that he had taken his resolution, and even after 
he had communicated with the king. I incline, therefore, 
upon the whole, to believe that Monk, not accustomed to 
respect the parliament, and incapable, both by his tempera- 
ment and by the course of his life, of any enthusiasm for 
the name of liberty, had satisfied himself as to the expe- 
diency of the king's restoration from the time that the Crom- 
w'ells had sunk below his power to assist them, though his 
projects were still subservient to his own security, which lie 
was resolved not to forfeit by any premature declaration or 
unsuccessful enterprise. If the coalition of cavaliers and 
presbyterians and the strong bent of the entire nation had 
not convinced this wary dissembler that he could not fail of 
success, he would have continued true to his professions as 
the general of a commonwealth, content with crushing his 
rival Lambeit and breaking that fanatical interest which he 
most dishked. That he aimed at such a sovereignty as 
Cromwell had usurped has been the natural conjecture of 
many, but does not appear to me either warranted by any 
presumptive evidence, or consonant to the good sense and 
phlegmatic temper of Monk. 

At the moment when, with a small but veteran army of 

ent impression, this is more likely to house, Feb. 21 ; and this alleged intrigns 

have been the foundation of Shaftesbury's -with Mazarin could hardly have been so 

story, who might have heard from Mrs. early. 

Mouk the circumstance of the visit, and It may be added that in one of the 
conceived suspicions upon it. which he pamphlets about the time of the exclusion 
afterwards turned into proofs. It was bill, written by Shaftesbury himself, or 
evidently not in Monk's power to have one of his party (Somers Tracts, viii. 338), 
usurped the government after he had let he is hinted to have principally brought 
the royalist iuchnations of the people about the Restoration ; " without whoso 
show tliem.selves ; and ho was by no courage and dexterity some men, th« 
means of a rash ch.iracter. He niu.st most highly rewarded, had done other- 
have taken his resolution when the sc- wise than they did." But this still de- 
tluded members were restored to the pends on his veracity. 



50 DESIGNS OF FLEETWOOD. Diiap. X 

7000 men, he took up liis quarters in London, it seemed to 
be within his arbitrament which way the scale should pre- 
ponderate. On one side were the wishes of the nation, 
but restrained by fear ; on the other, established possession, 
maintained by the sword, but rendered precarious by dis- 
union and treachery. It is certainly very possible that, by 
keeping close to the parliament, Monk might have retarded, 
at least for a considerable time, the great event which has 
immortalized him. But it can hardly be said that the king's 
restoration was rather owing to him than to the general sen- 
timents of the nation, and almost the necessity of circum- 
stances, which had already made every judicious person 
anticipate the sole termination of our civil discord which 
they had prepared. Whitelock, who, incapable of refusing 
compliance with the ruling power, had sat in the committee 
of safety established in October, 1G59, by the officers who 
had expelled the parliament, has recorded a curious anec- 
dote, whence we may collect how little was wanting to pre- 
vent Monk from being the great mover in the restoration. 
He had for some time, as appears by his journal, entertained 
a persuasion that the general meditated nothing but the 
king's return, to which he was doubtless himself well in- 
clined, except from some apprehension for the public inter- 
est, and some also for his own. This induced him to have a 
private conference with Fleetwood, which he enters as of the 
22d December, 1659, wherein, after pointing out the prob- 
able designs of Monk, he urged him either to take posses- 
sion of the Tower and declare tor a free parliament, in which 
he would have the assistance of the city, or to send some 
trusty person to Breda, who might offer to bring in the king 
upon such terms as should be settled. Both these proposi- 
tions were intended as different methods of bi'inging about 
a revolution which he judged to be inevitable. " By this 
means," he contended, " Fleetwood might make terms with 
the king for preservation of himself and his friends, and of 
that cause, in a good measure, in which they had been en- 
gaged; but if it were left to Monk, they and all that had 
been done would be left to the danger of destruction. Fleet- 
wood then asked me, ' if I would be willing to go myself 
upon this employment?' I answered, 'that I would go if 
Fleetwood thought fit to send me.' And after much other 
discourse to this effect Fleetwood seemed fully satisfied to 



Commonwealth. EETUKN OF SECLUDED MEMBERS. 51 

send me to the king, and desired me to go and prepare my- 
self forthwith for the journey ; and that in the mean time 
Fleetwood and his friends would prepare the instructions for 
me, so that I miglit begin my journey this evening or to- 
morrow morning early. 

" I, going away from Fleetwood, met Vane, Desborough, 
and Berry in the next room, coming to speak with Fleet- 
wood, who thereupon desired me to stay a little ; and I sus- 
pected what would be the issue of their consultation, and 
within a quarter of an hour Fleetwood came to me, and in 
much passion said to me, ' I cannot do it ! I cannot do it ! ' 
I desired his reason why he could not do it ? He answered, 
Those gentlemen have remembered me, and it is true, that 
I am engaged not to do any such thing without my lord 
Lambert's consent.' I replied, ' that Lambert was at too 
great a distance to have his consent to this business, which 
must be instantly acted.' Fleetwood again said, ' I cannot 
do it without him.' Then 1 said, 'You will ruin yourself 
and your friends.' He said, ' I cannot help it.' Then I told 
him I must take my leave, and so w^e parted."^ "" 

Whatever might have been in tlie power of Monk by 
adhering to his declarations of obedience to the 
parliament, it would have been too late for him, member 
after consenting to the restoration of the secluded returu tc 
members to their seats on February 21, 1G60, to 
withstand the settlement which it seems inci'cdible that he 
should not at that time have desired. That he continued for 
at least six weeks afterwards in a course of astonishing dis- 
simulation, so as to deceive in a great measure almost all the 
royalists, who were distrusting his intentions at the very 
moment Avhen he made his first and most private tender of 
service to the king through Sir John Grenvil about the be- 
ginning of April, might at first seem rather to have pro- 
ceeded from a sort of inability to shake off his inveterate 
reservedness than from consummate prudence and discre- 
tion ; for any sudden risings in the king's favor, or an in- 
trigue in the council of stale, might easily have brought 
about the Restoration without his concurrence ; and, even as 
it was, the language held in the house of commons beibro 
their dissilution, the votes expunging all tliat appeared on 
their journals against the regal government and the house 

1 Whitelock, 690. 



52 



REASON OF MONK'S DISSIMULATION. Chap. X. 



of lords,^ and, above all, the course of tlie election? for the 
new parliament, made it sufficiently evident that the general 
had delayed his assurances of loyalty till they had lost a part 
of their value. It is, however, a full explanation of Monk'3 
public conduct that he was not secure of the army, chielly 
imbued with fanatical principles, and bearing an inveterate 
hatred towards the name of Charles Stuart. A correspon- 
dent of the king writes to him on the 28th of March, " The 
army is not yet in a state to hear your name publicly." ^ In 
the beginning of that month many of the officers, instigated 



1 The engagement was repealed March 
13. This was of itself tantamount to a 
declaration in favor of the king, though 
perhaps the previous order of March 5, 
that the solemn league and covenant 
should be read in churches, was still more 
so. Pryune was the first who had the 
boldness to speak for the king, declaring 
his opinion that the parliament was dis- 
solved b}- the death of Charles I. ; he was 
supported by one or two more. Clar. 
Papers, 696. Thurloe, vii. 86i. Carte's 
Letters, ii. 312. Prynne wrote a pam- 
phlet advising the peers to meet .and i-ssue 
writs for a new parliament, according to 
the provisions of the triennial act, which, 
in fact, was no bad expedient. Somers 
Tracts, iv. 534. 

A speech of sir Harbottle Qrimston be- 
fore the close of the parliament, March, 
1660, is more explicit for the king's res- 
toration than anything which I have seen 
elsewhere ; and as I do uot know that it 
has been printed, I will give an extract 
from the Harleian MS. 1579. 

lie urges it as necessary to he done by 
them, and not left for the next parlia- 
ment, who all men believe would restore 
him. •' This is so true and so well under- 
stood, that we all believe that, whatso- 
ever our thoughts are, this will be the 
opinion of the succeeding parliament, 
whose concerns as well as affections will 
make them active for his introductio i. 
And I appeal, then, to your own judg- 
ments whether it is likely that those per- 
sons, as to their particular interest more 
unconcerned, and probably less knowing 
in the affairs of the nation, can or would 
obtain for any those terms or articles as 
we are yet in a capacity to procure both 
for them and us. I must confess sincere- 
ly that it would be as strange to me as a 
miracle, did I not know that God infatu- 
ates whom he designs to destroy, that we 
can see the king's return so unavoidable, 
and yet be no more studious of serving 
him, or at least ourselves, in the manag- 
ing of his recall. 



" The general, that noble personage to 
whom under God we do and must owe 
alt the advantiiges of our past and future 
changes, will be as far from opposing us 
in the design, as the design is removed 
from the disadvantage of tiie nation. He 
himself is, 1 am confident, of the same 
opinion ; and if he hag not yet given 
notice of it to the house, it is not that he 
does not look upon it as the best expedi- 
ent; but he only forbears to propose it, 
that he might uot seem to necessitate us, 
and by an over-early discovery of his own 
judgment be thought to take from us the 
freedom of ours."' 

In another place he says, " That the 
recalling of our king in this only w.ay (for 
composure of affairs) is already grown al- 
most as visible as true ; and, were it b'ut 
confessed of all of whom it is believed, 
I should quickly hear from the greatest 
part of this house what now it hears alone 
from me. Had we as little reason to fear 
as we have too much, that, if we bring 
not in the king, he either already is, or 
shortly may be, in a capacity of coming 
in unsent for, methinks the very knowl- 
edge of his right were enough to keep 
just persons, such as we would be con- 
ceived to be, from being accessory to his 
longer absence. We are already, and but 
j ustly, reported to have been the occasion 
of our prince's banishment ; we may, 
then, with reason and equal truth, for 
aught I know, be thought to have been 
the contrivers of it, unless we endeavor 
the contrary, by not .suffeiing the mis- 
chief to continue longer which is incur 
power to remove." 

Such passages as these, and the general 
tenor of public speeches, sermons, and 
pamphlets, in the spring of 1660, show 
iiow little Monk can be justly said to 
have restored Charles II., except so far 
as he did not persist in preventing it so 
long as he might have done. 

a Clarendon State Papers, 711- 



C:)MMoxwEALTn. HIS ACTS AS LORD-GENERAL. 53 

by Haslerig and his friends, had protested to Monk against 
the proceedings of the house, insisting that they should ab- 
jure the king and house of lords. He repressed their 
mutinous spirit, and bade them obey the parliament, as he 
should do.^ Hence he redoubled his protestations of abhor- 
rence of monarchy, and seemed for several weeks, in exterior 
demonstrations, rather the grand impediment to the king's 
restoration than the one person who was to have the credit 
ofit.2 Meanwhile he silently proceeded in displacing the 
officers whom he could least trust, and disposing the regi- 
ments near to the metropolis or at a distance, according tc 
his knowledge of their tempers ; the parliament having given 
him a commission as lord-general of all the forces in the 
three kingdoms.^ The commissioners appointed by parha- 
ment for raising the militia in each county were chiefly gen- 
tlemen of the presbyterian party ; and there seemed hkely 
to be such a considerable force under their orders as might 
rescue the nation from its ignominious servitude to the army. 
In fact, some of the royalists expected that the gi-eat ques- 
tion would not be carried without an appeal to the sword.^ 
The delay of Monk in privately assuring the king of his 
fidelity is still not easy to be explained, but may have pro- 
ceeded from a want of confidence in Charles's secrecy, or 
that of his counsellors. It must be admitted that lord Clar- 

1 Clarendon State Papers, 696. Oliver himself, who, though he manacled 

2 Id. 678, et post. He wrote a letter the citizens' hand.s, yet never took away 
(Jan. 21) to the gentry of Devon, who the doors of the city," and so forth. It 
had petitioned the speaker for the read- appears by the letters of Mordaunt and 
niit^sion of the secluded members, object- Brodcrick to Hyde, and by those of Hyde 
iiig to that measure as likely to biiug in hiin.self in the Clarendon Papers, that 
monarchy, very judicious, and with an they had no sort of confidence in Monk 
air of sincerity that might deceive any till near the end of March ; though Bar- 
one ; and after the restoration of these wick, another of his correspondents, 
secluded members, he made a speech to seems to have had more insight into the 
them (Feb. 21) strongly again.st mon- general's designs (Thurloe, S52, 860, 870), 
archy ; and that so ingenuously, upon who had expressed himself to a friend 
such good reasons, so much without in- of the writer, probably Clobery, fully in 
vective or finaticism, that the profes- favor of the king, before March 19. 
Bional hypocrites, who were used to their » Clar. 699, 705. Thurloe, vii. 860. 
own tone of imposture, were deceived by 870. 

his. Cromwell was a. mere bungler to * A. correspondent of Ormond writes, 

him. See these in Harris's Charles 11., March 16 : " This night the fatal long 

296. or Somers Tr.-icts, vi. .551. It cannot parliament hath dissolved itself. All this 

be wondered at that the royalists were appears well ; but I believe we shall not 

exasperated at Monk's behavior They be settled upon our ancient foundations 

publi.^hed abusive pamphlets against him without a war, for which all prepare 

in February, from which Kennet, in his vigorously and openly." Carte's Letters 

Register, "p. 53. gives quotations : — ii. 513. it appears also, from a letter of 

" Whereas be was the common hopes of Slassey to Hyde, that a rising in differ 

all men, he is now the common hatred of ent counties was intended. Thurloe 

»11 men as a traitor more detestable than 854. 



54 



DIFFICULTIES AEOUT 



Chap X. 



endon, avLo has Avritten with some minuteno.ss and accuracy 
this important part of his History, has more tljan insinuated 
(especially as we now read his genuine language, which the 
ill-faith of his original editors had shamefully garbled) that 
Monk entertained no purposes in the king's favor till the last 
moment ; but a manifest prejudice that shows itself in all liis 
writings against the general, derived partly from offence at 
his extreme reserve and caution during this period, partly 
from personal resentment of Monk's behavior at the time of 
his own impeachment, greatly takes off from the weight of 
the noble historian's judgment.^ 

The months of March and April, 16 GO, were a period of 
Difficulties Gxtrcme inquietude, during which every one spoke 
about the of the king's restoration as imminent, yet none 
res ora ion. ^,Q^^\([ clistiuctly pcrcMvc by what means it would 
be eifected, and much less how the difficulties of such a set- 
tlement could be overcome." As the moment approached, 



1 After giving the substance of Monk's 
speech to the hou?e, recommending a 
new parliament, but insisting on com- 
monwealth principles, ClarenJon goes on. 
" There was no dissimulation in this, in 
order to cover and conceal his good in- 
tentions to the king; for without doubt 
he had not to this hour entertained any 
purpose or thought to serve liim, but 
wa^ really of the opinion he expressed in 
his paper, that it was a work impossible ; 
and desired nothing but that lie might 
Bee a commonwealth established on such 
a model as Holland was, where lie had 
been bred, and that himself might enjoy 
the authority and place which the prince 
of Orange possessed in that government." 

- The Clarendon and Thurloe Papers 
are full of more proofs of this that can be 
'^j'uoted, and are very amusing to read, as 
a perpetually shifting picture of hopes 
and fears, and conjectures right or wrong. 
repys"s Diary also, in these two months, 
strikingly shows tlie prevailing uncer- 
tainty as to Monk'.s intentions, as well as 
the general desire of having the king 
brought in. It seems plain that, if he 
had delayed a very little longer, he would 
have lost the whole credit of the restora- 
tion. All parties began to crowd in 
with addresses to tlie king in the first 
part of April, before Monk was known to 
have declared himself. Tliurloe, among 
others, was full of his offers, tliough evi- 
dently anxious to find out whether the 
king had an interest with Monk, p. 898. 
The royalists had long entertained hopes, 
from time to time, of this deep politician ; 



but it is certain he never vrisliod well to 
their cause, and, with St. John and Pier- 
point, had been most zealous, to the last 
moment that it seemed practicable, 
against the restoration. There had been, 
so late as February, IGGO, or even after- 
wards, a strange plan of setting up again 
Richard Cromwell, wherein not oiily 
these three, but Montague, Jones, and 
others, were thought to be concerned, er- 
roneousl}- nodoubt as to Montague. Clar- 
endon State Papers, 693. Carte's Let- 
ters, ii. 310, 3.30. •' One of the greatest 
reasons they alleged was, that the king's 
party, consisting altogether of indigent 
men, will become powerful by little and 
little to force the king, whatever be his 
own disposition, to break any cng.'igement 
he can now make ; and since the nation 
is bent on a single person, none will com- 
bine all interests so well as Richard." 
This made Monk, it is said, jealous of 
St. John, so that lie was chosen at Cam- 
bridge to exclude him. In a letter of 
Thurloe to Downing at the Hague, April 
6, lie says " that many of the presbyte- 
rians are alarmed at the prospect, and 
thinking how to keep tlie king out with- 
out joining the sectaries." vii. 887. 
This could hardly be achieved but by 
setting up Richard. Yet that, as is tru- 
ly said in one of the letters quoted, was 
ridiculous. None were so conspicuous 
and intrepid on the king's sside as the pres- 
byterian ministers. Reynolds preached 
before the lord mayor, I'eb. 28, with 
manifest allusion to the restoration ; 
Gauden (who may be reckoned on that 



Commonwealth. THE RESTORATION. 65 

men turned their attention more to the obstacles and dfxngers 
that lay in their way. The restoration of a banished family, ^ 
concerning whom they knew little, and what they knew not 
entirely to their satisfaction, witli ruined, perhaps revenge- 
ful, followers ; the returning ascendency of a distressed 
party, who had sustained losses that could not be repaired 
without fresh changes of property, injuries that could not be 
atoned without fresh severities ; the conflicting pretensions 
of two churches — one loath to release its claim, the other to 
yield its possession; the unsettled dissensions between the 
crown and parliament, suspended only by civil war and 
usurpation ; all seemed pregnant with such difficulties that 
prudent men could hardly look forward to the impending 
revolution without some hesitation and anxiety.^ Hence 
Pierpoint, one of the wisest statesmen in England, tiiough 
not so far iniplicateil in past transactions as to have much to 
fear, seems never to have overcome his repugnance to the 
recall of the king ; and I am by no means convinced that 
the slowness of Monk himself was not in some measure 
owing to ills sense of the embarrassments that might attend 
that event. The presbyterians, generally speaking, had al- 
ways been on their guard against an unconditional restora- 
tion. They felt much more of hatred to the prevailing i 
power than of attachment to the house of Stuart, and had no 

Bide, as conforming to it) on the same vindicating the late king in his war 
day much more explicitly. Kennet's against the piirliiiment, lor which the 
Register. 69. Sharp .siiy.s, in a letter to a ruling party wpre by no n)ean.s ripe ; and 
correspondent in Scotland, that he. Ash, having justified it before the council, was 
and Calimy, had a long conversation committed to the Gate-house, early in 
with Moul;, March 11, " and convinced April. Id. ibid. These imprudences 
him a rouimonwealth was inipnicticable. occasioned the king's declaration from 
and to our sense .«ent him otf that sense Breda. Somers Tracts, vi. 562. Anoth- 
he had hithcrro uiainttiitied. and came er also was published, April 2.5, lOtJO, 
from him as being satisfied of the neccs- signed by several peers, knights, divines, 
sity of dis.solviug this house, and calling &c., of the royalist party, disclaiming all 
anew parliament." Id. p. 81. Ba.xter private passions and re.<entmeiits. Ken- 
thinks the presb_\ terian ministers, to- net's Itegister. 120. Olar. vii. 471. But 
gether with Clarges and Morrice, turned these public professions were we.ik dis- 
Monk's resolution, and induced him to guises, when belied by their current Ian- 
declare for the king. l>ife, p. 2. This is guage. See Ba.xter, 217. Marchmont 
a very plausible conjecture, though I in- Needham, in a tract entitled " Interest 
cline to think Monk more disposed that will not Lye,"' (written in answer to aQ 
way by his own judgment or his wife's, artful pamphlet ascribed to Fell, after- 
Bat she was influenced by the preshyte- wards bishop of Oxford, and reprinted in 
rian clergy. They eviilently desen-ed of Maseres's Tracts, '• The Interest of Eng- 
Charles what they did not meet with. land stated'' ), endeavored to alarm all 
1 The royalists began too soon with other p.irties, especially the presbyteri.ins, 
threatening ."peeches, which well-nigh with represeutitions of the violence they 
frustrated thirir object. Id. 721, 722, had to expect from that of the king. Se* 
727. Carte's l>etters. 318. Tburloc, 887. Harris's Charles II., 268. 
One Dr Uriflith published a little book 

VOL. H. — C. 6 



56 DIFFICULTIES ABOUT Chap. X. 

disposilion to relinquish, either as to church or state govern- 
ment, tliose principles for which they had fought against 
Charles I. Hence they began, from the very time that 
they entered into the coalition (that is, the spring and sum- 
mer of 1659), to talk of the treaty of Newport as if all that 
had passed since their vote of the 5th December, 1 G48, that 
the king's concessions were a sufficient ground whereon to 
proceed to the settlement of the kingdom, had been like a 
hideous dream, fiom which they had awakened to proceed 
exactly in their former course.* The council of state, ap- 
pointed on the 23d of February, two days after the return 
of the secluded members, consisted principally of this party. 
And there can, I conceive, be no question that, if Monk had 
continued his neutrality to the last, they would, in conjunc- 
tion with the new parliament, have sent over propositions 
for the king's acceptance. Meetings were held of the chief 
presbyterian lords, Manchester, Northumberland, Bedford, 
Say, with Pierpoint (who, finding it too late to prevent the 
king's return, endeavored to render it as little dangerous as 
possible), HoUis, Annesley, sir William Waller, Lewis, and 
other leaders of that party. Monk sometimes attended on 
these occasions, and always urged the most rigid limitations.^ 
His sincerity in this was the less suspected, that his wife, to 
whom he was notoriously submissive, was entirely presby- 
terian, though a friend to the king ; and his own preference 
of that sect had always been declared in a more consistent 
and u.iequivocal manner than was usual to his dark temper. 
These projected limitations, which but a few weeks before 
Charles would have thankfully accepted, seemed now intoler- 
able ; so rapidly do men learn, in the course of pi'osperous 

i Proofs of the disposition among this recompense the delay, rendering what is 
party to revive the treaty of the Isle of now extremely doubtful morally certain, 
Wight occur perpetually in the Thurloe and establishing his throne upou the true 
and Clarendon Papers, and in those pub- basis, liberty and property." .July 16, 
lished by Carte. The king's agents in 1659. Clar. State Papers, 527. 
England evidently expected nothing bet- 2 Clarendon, Ilist. of Kebellion, vii. 
ter ; and were, generally spe;ikiug, much 440. State Papers, 705, 729. " There 
for his accepting the propo.-itions. " The is so insolent a spirit among some of the 
presbyterian lords," says sir Allen Brod- nobility," says Clarendon, about the 
erick to Hyde, " with many of whom I middle of February, " that I really fear 
have spoken, pretend that, .should the it will turn to an aristocracy; Monk in- 
king come in upon any sucli insurrection, dining that way too. My opinion is 
abetted by those of his own party, he clear that the king ought not to part 
would be more absolute than his father with the church, crown, or friends' 
was in the height of his prerogative. Stay lands, lest he make my lord of Northum- 
therefore, say they, till we are ready ; berland his equal, nay, perhaps his su 
our numbers bo added will abundantly perior." P. 680. 



Common 'vealth. 



THE RESTORATION. 



57 



fortune, to scorn what they just before hardly presumed to 
expect. Those seemed his friends, not who desired to restore 
him, but who woulci do so at the least sacrifice of his power 
and pride. Several of the council, and others in high posts, 
sent w'ord that they would resist the imposition of uiu-eason- 
able terms.^ Monk himself redeemed his ambiguous and 
dilatory behavior by taking the restoration, as it were, out of 
the hands of the council, and suggesting the judicious scheme 
of anticipating their proposals by the king's letter to the two 
houses of parliament. For this purpose he had managed* 
with all his dissembling pretences of commonwealth prin- 
ciples, or, when he was (as it were) compelled to lay them 
aside, of insisting on rigorous limitations, to prevent any 
overtures from the council, who were almost entirely presby- 
terian, before the meeting of parliament, which would have 
considerably embarrassed the king's affairs.- The elections 
meantime had taken a course which the faction now in power 
by no means regarded with satisfaction. Though the late 
house of commons had passed a resolution that no person 
who had as.-isted in any war against the parliament since 



<k^ 



1 Downing, the minister at the Hague, 
was one of these. His overtures to the 
king were as eiirly as Monk's, at the be- 
ginning of April ; he declareil his wish 
to see his majesty restored on good 
terms, though many were desirous to 
make him a doge of Venice. Carte's 
Letters, ii. 320. See also a remarkable 
letter of the king to Monk (dated May 
21; but I suspect he used the new style, 
therefore read May 11), intimating what 
a service it would be to prevent the im- 
position of any terms. C'lar. 745. And 
another from him to Morrice, of the same 
tenor. May 20 (X. S.), 1660, and hinting 
that his niHJesty's friends in the house 
had complied with the general in all 
things, according to the king's direc- 
tions, departing from their own sense, 
and restraining themselves from pursu- 
ing what they thought most for his 
service. Tluirloe, vii. 912. This per- 
haps referred to the indemnity and other 
provislon.s then p«iiding in the commons, 
or rather to the delay of a few days be- 
fore the delivery of sit John Qreavil's 
message. 

- ' Alonk came this day (about the 
first week of April) to the council, and 
assured them that, notwithstanding all 
tlifl appearance of a general desire of 
kingly government, yet it was in nowise 
hia seuM, and that he would spend the 



last drop of his blood to maintain the 
contrary." Extract of a letter from 
Thnrloe to Downing. Carte's Letters, 
ii. 322. " The cou.icil of state are utter- 
ly ignorant of Monks treating with the 
king ; and surely, as the present temper 
or the council of sfcUe is now, and may 
possibly be also of the parliament, by 
reason of the presbyterian influence 
upon both, I should think the first 
chapman will not be the worst, who 
perhaps will not offer so good a nite in 
conjunction with the company as he may 
give to engross the commodity." Clar. 
722, April 6. This sentence is a clue to 
all the intrigue. It is said soon after- 
wards (p. 726, .\pril 11) that the presby- 
terians were much troubled at the course 
of the elections, which made some of the 
council of state again address themselves 
to Monk for his consent to propositions 
they would send to the king; but he 
absolutely refused, and said he would 
leave all to a free parliament, as he had 
promised the nation. Yet, though the 
elections went as well as the royalists 
could reasonably expect, Hyde was dis- 
satisfied that the king was not restored 
without the intervention of the new par- 
liament; and this may have been <in« 
reason of his spleen agaiost Monk. P 
726, 731. 



5B DIFFICULTIES ABOUT Chap. X. 

1642, unless he should since have manifested his good affeo 
tion towards it, should be capable of being elected, yet this, 
even if it had been regarded, as it was not, by the peo[)le, 
would have been a feeble bai'rier against the royalist party, 
comi)osed in a gi-eat measure of young men who had giown 
up under the commonwealth, and of those who, living in the 
parliamentary counties during the civil war, had paid a re- 
luctant obedience to its power.^ The tide ran so strongly 
for the king's friends, that it was as much as the presbyte- 
yians could effect, with the Aveight of government in their 
hands, to obtain about an equality of strength with the cava- 
liers in the convention ])arliament.^ 

It has been a fi-equent reproach to the conductors of this 
great revolution, that the king was restored without those 
terms and limitations which might secure the nation against 
his abuse of their confidence ; and this, not only by contem- 
poraries who had suffered by the political and religious 
changes consequent on the Restoration, or those who, hi after- 
times, have written with some prepossession against the P2ng- 
lish church and constitutional monarchy, but by the most 
temperate and reasonable men ; so that it has become almost 
regular to cast on the convention parliament, and more 
especially on Monk, the imputation of having abandoned 
public liberty, and brought on, by their inconsiderate loyalty 
or self-interested treachery, the misgovernraent of the last 
two Stuarts, and the necessity of their ultimate expulsion. 
But, as this is a very material part of our history, and those 
who pronounce upon it have not always a veiy distinct notion 
either of what was or what could have been done, it may be 
worth while to consider the matter somewhat more analyti- 
cally ; confining myself, it is to be observed, in the present 
chapter, to what took place before the king's personal 

1 A proposed resolution, that those Thurloe, 887. Clarendon, who was him- 

who had been on the kind's side, or their self not insensible to that kind of super- 

tons, should be disabled from voting at stition, had fancied that anything done 

elections, was lost by 93 to 56, the last at Gloucester by Massey for the king's 

effoit of the expiring long parliament, service would make a powerful iuipres- 

Journals, 13th March. The electors did sion on the people. 

not think themselves bound by this ar- 2 it is a curious proof of the state of 
bitrary exclusion of the cavaliers from public sentiment that, though Monk 
parliament; several of whom (though himself wrote a letter to the electora 
not perhaps a great number within the of Bridgenorth, recommending Thurloe, 
terms of the resolution) were returned, the cavalier party was so powerful, thai 
Massey, however, having gone down to his friends did not even produce the let- 
star 1 for Gloucester, was put under ter lest it should be treated with neglect 
•rrait by order of the council of state. Thurloe. vii. 895 



COMMONWEALTH. THE RESTORATION. 59 

assumption of the gov^ernment on the 29th of May, 1660. 
The subsequent proceedings of the convention parliament fall 
within another period. 

We may remark, in the first place, that the unconiitional 
restoration of Charles II. is sometimes spoken of in too 
hyperbolical language, as if he had come in as a sorl of con- 
queror, with the laws and liberties of the people at his dis- 
cretion. Yet he was restored to nothing but the bounded 
prerogatives of a king of England ; bounded by every ancient 
and modern statute, including those of the long parliament, 
which had been enacted for the subjects' security. If it be 
true, as I have elsewheie observed, that the long parliament, 
in the year 1641, had estabhshcd, in its most essential parts, 
our existing constitution, it can hardly be maintained that 
fresh limitations and additional securities were absolutely 
indispensable, before the most fundamental of all its prin- 
ciples, the government by king, lords, and commons, could 
be permitted to take its regular course. Tlio.~e who so vehe- 
mently reprobate the want of conditions at the Restoration 
would do well to point out what conditions should have been 
imposed, and what mischiefs they can probably trace from 
their omission.^ They should be able also to prove that, 
in the circumstances of the time, it was quite as feasible and 
convenient to make certain secure and obligatory provisions 
the terms of the king's restoration as seems to be taken for 
granted. 

The chief pi-esbyterians appear to have considered the 
treaty of Newport, if not as fit to be renewed in pian of 
every article, yet at least as the basis of the com- [Jj^^J^jf 
pact into which they were to enter with Charles of Newport 
11.2 ^^^^ „.^i.g tHe concessions wrested in this '"^^p^^'^"*- 
treaty from his father, in the hour of peril and necessity, fit 
to become the permanent rules of the English constitution ? 
Turn to the articles prescribed by the long parliament in 
that negotiation. Not to mention the eistablishment of a 
rigorous presbytery in the church, they had insisted on the 

1 " To the king's coming in without difficult to perceive by what conditions 

conditions may he well imputed all the this secret intrigue could have been pre- 

errors of his reign." Thus says Burnet, vented. 

The great political error, it so" it should - Clarendon Papers, p. 729. They re- 

\ie termed, of his reign, was a conspiracy solved to send the articles of that treatj 

with the king of Kntnce and some wicked to the king, leaving out the preface 

advisers at home to subvert 'he religion This waa e.bout the middle of April, 
uid liberty of his subjecti . and it is 



60 DIFFICULTIES OF Chap. X. 

exclusive command of all forces by land and sea for twenty 
years, with the sole power of levying and expending the 
moneys necessary for their support ; on the nomination of 
the principal officers of state and of the judges during the 
same period ; and on the exclusion of the kinji's adherents 
from all trust or j)olitical power. Admit even that the insin- 
cerity and arbitrary principles of Charles I. had rendered 
necessary such extraordinary precautions, was it to be sup- 
posed that the executive power should not revert to his suc- 
cessor ? Better it were, beyond comparison, to maintain the 
perpetual exclusion of his family than to mock them with 
such a titular crown, the certain cause of discontent and 
intrigue, and to mingle premature distrust with their pro- 
fessions of affection. There was undoubtedly much to appre- 
hend from the king's restoration ; but it might be expected 
that a steady regard for public liberty in the parliament and 
the nation would obviate that danger without any momentous 
change of the constitution ; or that, if such a sentiment 
should prove unhappily too weak, no guarantees of treaties 
or statutes would afford a genuine security. 

If, however, we were to be convinced that the restoration 
T^.^ ,. was effected witliout a sufficient safeguard against 

Difficulty . . 

of framing tlic futurc abuses of Toyal power, we must still 
couditions. allow, ou looking attentively at the circumstances, 
that there were very great difficulties in the way of any stip- 
ulations for that purpose. It must be evident that any for- 
mal treaty between Cliarles and the English government, as 
it stood in April, 1 660, was inconsistent with their common 
principle. That government was, by its own declarations, 
only de facto, only temporary ; the return of the secluded 
members to their seats, and the votes they subsequently 
passed, held forth to the people that everything done since 
the force put on the house in December, 1648, was by an 
usurpation ; the restoration of the ancient monarchy was im- 
plied in all recent measures, and was considered as out of all 
doubt by the whole kingdom. But between a king of Eng- 
land and his subjects no treaty, as such, could be binding ; 
there was no possibility of entering into stipulations with 
Charles, though in exile, to which a court of justice would 
pay the slightest attention, except by means of acts of par- 
liament. It was doubtless possible that the council of state 
might have entered into a secret agreement with him on cer- 



Commonwealth. THE GOVERNMENT. 61 

tain terms, to be incorporated afterwards into bills, as at the 
treaty of Newport. But at tliat treaty his father, though in 
prison, was the acknowledged sovereign of England; and it 
is manifest that the king's recognition must precede the en- 
actment of any law. It is equally obvious that the contract- 
ing parties would no longer be the same, and that the condi- 
tions that sei'med indispensable to the council of state might 
not meet with the approbation of parliament. It might occur 
to an impatient people that the former were not invested with 
such legal or permanent authority as could give them any 
pretext for bargaining with the king, even in behalf of pub- 
lic liberty. 

But, if the council of state or even the parliament on its 
first meeting, had resolved to tender any hard propositions to 
the king, as the terms, if not of his recognition, yet of his 
being permitted to exercise the royal functions, was there not 
a possibility that he might demur about their acceptance, that 
a negotiation might ensue to procure some abatement, that, in 
the interchange of couriers between London and Brussels, 
some weeks at least might be whiled away ? Clarendon, we 
are sure, inflexible and uncompromising as to his master's 
honor, would have dissuaded such enormous sacrifices as had 
been exacted from the late king. And during this delay, 
while no legal authority would have subsisted, so that no offi- 
cer could have collected the taxes or executed process with- 
out liability to punishment, in what a precarious state would 
the parliament have stood ! On the one hand, the nation, 
almost maddened with the intoxication of reviving loyalty, 
and rather prone to cast at the king's feet the privileges and 
liberties it possessed tlian to demand fresh security for them, 
might insist upon his immediate return, and impair the au- 
thority of parliament. On the other hand, the army, desper- 
ately irreconcilable to the name of Stuart, and sullenly resent- 
ing the hyjjocrisy that had deluded them, though they knew 
no longer where to seek a leader, were accessible to the furi- 
ous commonwealth's men, who, rushing as it were with li.^hted 
torches along their ranks, endeavored to rekindle a fanaticism 
that had not quite consumed its fuel.' The escape of Lam- 
bert from the Tower liad struck a panic into all the king- 
dom ; some such accident might again furnish a rallying-poini 
*br the disaffected, and plunge tlie country into an unfathom 

1 Life of Clarendon, p. 10. 



62 CONDUCT OF THE CONVENTION. Chap. X. 

able abyss of confusion. Hence tbe motion of sir Matthew 
Hiile, in Ihe convention parbamcnt, to appoint a committee 
who should draw up propositions to be sent over for the 
king's acceptance, does not appear to me well-timed and 
expedient ; nor can I censure Monk for havin<T objected to 
it.^ The business in hand required greater despatch. If 
the king's restoration was an essential blessing, it was not to 
be thrown away in the debates of a committee. A wary 
scrupulous, conscientious English lawyer, like Hale, is always 
wanting in the rapidity and decision necessary for revolu- 
tions, though he may be highly useful in preventing them 
from going too far. 

It is, I confess, more probable that the king would have 
Conduct of accepted almost any conditions tendered to him ; 
theconven- g^c^ at Icast would have been the advice of most 
this not of his counscllors ; and his own conduct in Scot- 
biamabie, ^^^^ ^^,^^ sufficient to show how little any sense of 
honor or dignity would have stood in his way. But on what 
grounds did his English friends, nay, some of the presbyteri- 
ans themselves, advise his submission to the dictates of that 
party ? It was in the expectation that the next free parlia- 
ment, summoned by his own writ, would undo all this. work 
of stipulation, and restore him to an unfettered prerogative. 
And this expectation there was every ground, from the tem- 
per of the nation, to entertain. Unless the convention par- 
liament had bargained for its own perpetuity, or the privy 
council had been made immovable, or a military force inde- 
pendent of the crown had been kept up to overawe the 
people (all of them most unconstitutional and abominable 
usurpations), there was no possibility of maintaining the 
conditions, whatever they might have been, from the want 
of which so much mischief is fancied to have sprung. Evils 
did take place, dangers did arise, tlie liberties of England 
were once more impaired ; but these are far less to be 
ascribed to the actors in the restoration than to the next par- 
liament, and to the nation who chose it. 

I must once more request the reader to take notice that I 
am not here concerned with the proceedings of the conven- 
tion parliament after the king's return to England, which in 

1 "This," says Burnet, somewhat in- self, the tide ran so strong, that lie only 
vi'liously, " was the great service that went into it dexterously enough to gel 
Monk did; for as to the restoration it- much praise and great rewards." P. 123 



Commonwealth. ACTS OF CONVENTION PARLIAMENT. 63 

some respects appear to me censurable ; but discussing the 
question, whetlier tliey were guilty of any fault in not tcn« 
dering bills of limitation on the prerogative, as preliminary 
conditions of his restoration to the exercise of his lawful 
authority And it will be found, upon a review of what 
took place in that interregnum from their meeting together 
on the 25th of April, 16G0, to Charles's arrival in London on 
the 29th of May, that they were less unmindful than has 
been sometimes supposed of provisions to secuie the king- 
dom against the perils which had seemed to threaten it in the 
restoration. 

On the 25th of April the commons met and elected Grim- 
ston, a moderate pre.<byterian, as their speaker, somewhat 
against the secret wish of the cavaliers, who, elatt'd by their 
success in the elections, were beginning to aim at superiority, 
and to show a jealousy of their late allies.^ On the same 
day the doors of the house of lords were found open ; and 
ten peers, all of whom had sat in 1648, took their places as 
if nothing more than a common adjournment had passed in 
the interval.'^ There was, however, a very delicate and em- 
barrassing question that had been much discussed in their 
private meetings. The object of these, as I have mentioned, 
was to impose terms on the king, and maintain the presbyte- 
rian ascendency. But the peers of this party were far from 
numerous, and must be outvoted, if all the other lawful mem- 
bers of the house should be admitted to their privileges. Of 
these there were three classes. The first was of the peers 
who had come to their titles since the conclusion of the civil 
war, and whom there was no color of justice, nor any vote of 
the house, to exclude. To some of these accordingly they 
caused letters to be directed, and the others took their seats 
without objection on the 2Gtli and 27th of Apiul, on the lat- 
ter of which days thirty-eight peers were present.^ The 
second class was of those who had joined Charles I., and had 
been excluded from sitting in the house by votes of the long 
parliament. These it had been in contemplation among the 
presbyterian junto to keep out ; but the glaring inconsist- 

1 Griuiston was proposed by Pierpoint, ' These were the earls of Manchester, 

BDclcouducteii to the chair by him, Monk, North uuiberland, Lincoln. Denbigh, and 

and UoUis. Journals, Pari, lli.st. The Suffolk; lords Say, Wliaitou, llun.'idoD, 

cavaliers complained that this was done Grey, Maynard. Lords' Journals, April 

before they came into the house, and 25. 

that he WHS partial. .Mordaunt to ll>de, ^ Clarendon State P»pers, 734 Lords 

4pnl27 Clareudou State Papers, 7ii4. Jouruaiu. 



64 ACTS OF CONVENTION PARLIAMENT. Chap. X. 

ency ot" such a measure with the {)Opular sentiment, and the 
streno-ih that the finst class had given to the royahst interest 
among llie aristocracy, prevented them fi'ora insisting on it. 
A third chiss consisted of those who had been created since 
the great seal was taken to York in 1642; some by the late 
king, others by the present in exile ; and these, according to 
the t'lindan.ental principle of the parliamentary side, were 
uicapable of sitting in the house. It was probably one of 
the conditions on which some meant to insist, conformably to 
the articles of the treaty of Newport, that the new peers 
should be perpetually incapable, or even that none should in 
future have the right of voting without the concurrence of 
bofh houses of parliament. An order was made theretbre on 
May 4, that no loi'ds created since 1642 should sit. This 
was vacated by a subsequent resolution of May 31. 

A message was sent down to the commons on April 27, 
desiring a conference on the great affairs of the kingdom. 
This was the first time tliat word had been used tor more 
than eleven years. But the commons, in returning an an- 
swer to this message, still employed the word nation. It 
was determined that the conference should take place on 
the ensuing Tuesday, the tirst of May.^ In this conference 
there can be no doubt that the question of further securities 
against the power of the crown would have been discussed. 
But Monk, whether from conviction of their inexpedience 
or to atone lor his ambiguous delay, had determined to pre- 
vent any encroachment on the prerogative. He caused the 
king's letter to the council of state and to the two houses 
of parliament to be delivered on that very day. A burst 
of enthusiastic joy testified their long-repressed wishes ; and, 



' " It was this day (April 27) moTed ia appear for the king, the afifections of the 

the house ot" commons to call ia tlie king; people are so high for him, that uo othei 

but it was deferred till Tuesday next by authority can oppose him." II. Coventry 

the king's friends' consent, and then it is to Marquis of Orniond. Carte's Letters, 

generally believed .something will be done ii. 328. Mordaunt confirms this. Those 

in it. The calling in of the king is now who moved for the king were colonel 

not doubted ; but there is a party among King and Mr. Finch, both decided cava- 

the old secluded members that would liers. It must have been postponed by 

have the treaty grounded upon the Isle the policy of Monk. What could Claren- 

of Wight propositions ; and the old lords don mean by saying (History of Rebellion, 

are thought generally of that design, vii. 478) that "none had the courage, 

But it is believed the house of commons how loyal soever their wishes were, to 

will use the kiag more gently. The gen- <iention his maje-sty"? This straugt 

eral hath beeu highly couiplimejted by way of speaking has misled Hume, who 

both houses, aud, without doubt, the copies it. The king was as generally 

giving the king easy or hard conditions talked of as if he were on the throne. 
depeailetb totally upon him ; for, if he 



Commonwealth. THE MILITIA QUESTION. 65 

whep the conference took place the earl of Manchester lyaa 
instructed to let the commons know that the lords "do own 
and declare that, according to the ancient and fundamental 
law.") of this kingdom, the government is and ought to be by 
king, lords, and commons." On the same day the commons 
resolved to agree in this vote, and appointed a committee to 
report what pretended acts and ordinances were inconsistent 
with it.^ 

It is, however, so far from being true that this convention 
gave itself up to a blind confidence in the king, that their 
journals during the month of May bear witness to a consid- 
erable activity in furthering provisions which the circum- 
stances appeared to require. They appointed a committee 
on May 3d to consider of the king's letter and declaration, 
both holding forth, it will be remembered, all promises of 
indemnity, and everything that could tranquillize apprehen- 
sion, and to propose bills accordingly, especially for taking 
away military tenures. One billwas brought into the house 
to secure lands purchased from the trustees of the late par- 
liament ; another, to establish ministers already settled in 
benefices ; a third, for a general indemnity ; a fourth, to take 
away tenures in chivalry and wardship ; a fifth, to make 
void all grants of honor or estate made by' the late or pres- 
ent king since May, 1642. Finally, on the very 29th of 
May, we find a bill read twice and committed, for the con 
fii-mation of privilege of parliament. Magna Chaita, the 
Petition of Right, and other great constitutional statutes.^ 
These measures, though some of them were never completed, 
proved that the restoration was not carried forward with so 
thoughtless a precipitancy and neglect of liberty as has been 
asserted. 

Tiiere was undoubtedly one very important matter of past 
controversy which they may seem to have avoided, except in 
the power over the militia. They silently gave respect of 
up that momentous question. Yet it was become, " *"' "*" 
in a practical sense, incomparably more important that the 
representatives of the commons should retain a control over 
the land forces of the nation than it had been at the com- 
mencement of the controversy. War and usurpation had 
sown the dragon's teeth in our fields ; and, instead of the 

1 Lords' and Commons' Journals. Pari. ^ Commons' Journals. 
Hist. iv. 24. 



66 CONDUCT OF MONK.. Chap. X 

peaceable trained bands of former ages, the citizen soldiers 
who could not be marched beyond their counties, we had a 
veteran army accustomed to tread upon the civil authority 
at the bidding of their superiors, and used alike to govern 
and obey. It seemed prodigiously dangerous to give up this 
weapon into the hands of our new sovereign. Tiie experi- 
ence of other countries as well as our own demonstrated that 
the public liberty could never be secure if a large standing 
army should be kept on foot, or any standing army without 
consent of parliament. But this salutary restriction the 
convention parliament did not think fit to propose ; and in 
this respect I certainly consider them as having stopped 
short of adequate security. It is probable that the necessity 
of humoring Monk, whom it was their first vote to constitute 
general of all the foices in the three kingdoms,^ with the hope, 
which proved not vain, that the king him.-elf would disband 
the present army, whereon he could so little rely, pievented 
any endeavor to establi~h the control of parliament over the 
military power till it was too late to withstand the viohmce 
of the cavaliers, who considered the absolute prerogative of 
the crown in that point the most fundamental article of their 
creed. 

Of Monk himself it may, I think, be said that, if his con- 
Oonduct of duct in this revolution was not that of a high 
Monk. minded patriot, it did not deserve all the reproach 

that has been so frequently thrown on it.. No one can, with- 
out forfeiting all pretensions to have his own word believed, 
excuse his incomparable deceit and perjury ; a masterpiece, 
no doubt, as it ought to be reckoned by those who set at 
nought the obligations of veracity in public transactions, of 
that wisdom which is not from above. But, in seconding 
the public wisli for the king's restoration, a step which few 
perhaps can be so much in love with fanatical and tyrannous 
usurpation as to condemn, he seems to have used what influ- 
ence he possessed — an influence by no means commanding 
— to render the new settlement as little injurious as possible 
to public and private interests. If he frustrated the scheme 
of throwing the executive authority into the hands of a 

1 Lords' Jouroals, May 2. Upon the commons were requested to appoint a 

same day the house went iuto considera- proportionate number to join therein, 

tion how to settle the militia of this But no bill was brought in till after the 

kingdom. A committee of twelve lords king's return. 
waA appointed for this purpose, and the 



CtWMc.N WEALTH. CONDUCT OF MONK. 67 

presbj'terian oligarchy, I, for one, can see no great cause 
for censure ; nor is it quite reasonable to expect that a sol- 
dier of fortune, inured to the exercise of arbitrary power, 
and exempt from the prevailing religious fanaticism which 
must be felt or despised, should have partaken a fervent 
zeal for liberty, as little congenial to his temperament as 
it was to his profession. He certainly did not saj^isfy the 
king, even in his first promises of support, when he advised 
an ab-ohite indemnity, and the preservation of actual inter- 
ests in the lands of the crown and church. In the first 
debates on the bill of indemnity, when the case of the reg- 
icides came into discussion, he pressed for the smallest num- 
ber of exceptions from pardon ; and, though his conduct 
after the king's return disi)layed his accustomed prudence, 
it is evident that, if he had retained great influence in the 
council, which he assuredly did not, he would have main- 
tained as much as possible of the existing settlement in the 
church. The deepest stain on his memory is the production 
of Argyle's private letters on his trial in Scotland ; nor in- 
deed can Monk be regarded, upon the whole, as an estimable 
man, though his prudence and success may entitle him, in 
the common acceptation of the word, to be reckoned a great 
one 



68 JOr AT THE RESTORATION. Chap. XI 



CHAPTER XL 

FROM THE RESTORATION OP CHARLES THE SECOND TO 

THE FALL OF THE CABAL ADMINISTRATION. 

Popular .Toy at the Restoration — Proceedings of the Convention Parliament — Act 
of Indemnitj' — Exclusion of the Regicides and others — Discussions between the 
Houses on it — Execution of Regicides — Kestitutioii of Crown and Church Lands 
— Discontent of the Royalists — Settlement of the Revenue — A bolitioii , ^ Mili - 
tary Tenures — Excise granted insteiid — Army disbanded — Clergy restored to 
their Renefices — Hopes of the Presbyterians from the King — Projects for a Com- 

gromise — King's Declaration in Favor of it — Convention Parliament dissolved — 
iffcrent Complexion of the next — Condemnation of A'ane — Its lujnstice — Acts 
replacing the Crown in its Prerogatives — Corpoiiitiou Act — Repeal of Triennial 
Act — Star-chamber not restored — Presbyterians deceived by the King — Savoy 
Conference — Act of Uniformity — Kjection of Non-conformist Clergy — Hopes of 
the Catholics — Bias of the I^ing towards them — Resisted by Clarendon and the 
Parliament — Declaration for Indulgence — Objected to by the Commons — Act 
against Conventicles — Another of the same kind — Remarks on them — Dissatis- 
faction increases — Private Life of the King — Oppositiou in Parlianieut — Appro- 
priation of Supplies — Conimissioa of Public Accounts — Decline of Clarendon's 
Power — Loss of the King's Favor — Coalition against him — Ilis Impeachment — 
Some Articles of it not unfounded — Illegal Imprisonments — Sale of Dunkirk — 
Solicitiition of French Money— His Faults as a Minister — Uis pusillanimous 
Flight — And consequent Rauishment — Cabal Ministry — Scheme of Comprehen- 
sion and Indulgence — Triple Alliance — Intrigue with France — King's Desire to 
be Absolute — Secret Treaty of 1670 — Its Objects — Diffeiences between Charles 
and Louis as to the Mode of its Execution — Fresh Severities against Dissenters — 
Dutch War — Declaration of Indulgence — Opposed by I'arliament — And with 
drawn — Test Act — I'aU of Shaftesbury and his Colleagues. 

It is universally acknowledged that no measure was ever 
more national, or has ever produced more testimonies of pub- 
lic approbation, than the restoration of Charles II. Nor 
, . can tliis be attributed to the usual fickleness of the 

Popular joy i • i T-^ i i i i 

at the res- multitude, r or the late government, whether un- 
toration. ^g^, ^j^g parliament or the protector, had never ob- 
tained the sanction of popular consent, nor could have sub- 
sisted for a day without the support of the army. The king's 
return seemed to the people the harbinger of a real liberty, 
instead of that bastard commonwealth which had insulted 
them with its name — a liberty secure from enormous assess- 
ments, which, even when lawfully imposed, the English had 
always paid with reluctance, and from the insolent despotism 
of the soldiery. The young and lively looked forward to a 
release from the rigors of fanaticism, and were too ready to 
exchange that hypocritical austerity of the late times for a 



Cha. II. — 1G60-73. ACT OF INDEAINITY. 69 

licentiousness and impiety that became characteristic of the 
present. In this tumult of exulting hope an<l joy tliere was 
much to excite anxious forebodings in cahner men ; and it was 
by no means safe to pronounce tliat a change so generally de- 
manded, and in most respects so expedient, could be effected 
without very serious sacrifices of public and particular inter- 
ests. 

Four subjects of great importance, and some of them 
very difiicult, occupied the convention [)arliament „ 
from the time of the king's retuim till their dissolu- oftuecon- 
tion in the following December: a general indem- Jja^^^"^'''" 
nity and legal oblivion of all that had been done 
amiss in tlie Lite interruption of government ; an adjustment 
of the claims for reparation which the crown, the church, and 
private royalists had to prefer; a provision for the king's rev- 
enue, consistent with the abolition of militi.ry tenures; and 
the settlement of the church. These were in etiect the 
articles of a sort of treaty between the king and the nation, 
without some legislative provisions as to which, no stable or 
tranquil course of law could be expected. 

The king, in his well-known declaration from Breda, dated 
the 14th of April, had laid down, as it were, cer- Act of 
tain bases of his restoration, as to some points >n<i»-'ninity. 
(vhich he knew to excite much apprehension in England. 
One of these was a free and general pardon to all his subjects, 
saving only such as should be excepted by parliament. It 
had always been the king's expectation, or at least that of his 
chancellor, that all who had been immediately concerned in 
his fixther's death should be delivered up to punish- Exclusion of 
ment ; ^ and, in the most unpropitious state of his t'le ns^iiidcg 
fortunes, while making all prol'essions of pardon 
and favor to different parties, he had constanlly excepted the 
regicides.^ Monk, however, had advised, in his first messages 
to the king, tliat none, or at most not above four, should be 
excepted on this account ; ® and the commons voted that not 

1 Life of Clarendon, p. 69. first against any exceptions, and after- 

* Clar. State Papers, iii. 427, 529. In wards prevailed on tlie house to limit 

filct, very few of them were likely to be them to seven : p. 16. ThdUgli Ludlow 

of use ; and the exception made his gen- was not in Kiiijland, this .seems very 

eral offers appear more sincere. probable, and is co.ifirnicd by other 

' Clar. Hist, of Rebellion, vii. 447. authority as to Monk. Fairfax, who had 

Ludlow says that Kairfjxx and Northum- sat one day himself on the king's trial, 

berland were positively against the pun- could hardly with decency concur in tbi 

ishroent of the regicides; vol. iii. |>. 10; punishnieut of those who went on. 
•nd that Monk vehemently declared at 



70 EXCLUSION OF REGICIDES Chap. XI 

more that seven persons should lose the benefit of the indem- 
nity both as to liie and estate.^ Yet, after having named 
seven of the late king's judges, they proceeded in a few days 
to add several more, who had been concerned in managing 
his trial, or otiierwise forward in promoting his death.'^ They 
v\ent on to pitch upon twenty persons, wliom, on account of 
tlieir d'iep concern in the transactions of the last twelve years, 
ihey determined to affect with penalties not extending to 
death, and to be determined by some future act of parlia- 
ment.* As their passions grew warmer, and the wishes of 
the court became better known, they came to except from all 
benefit of the indemnity such of the king's judges as had not 
rendered themselves to justice according to the late proclama- 
tion.^ In this state the bill of indemnity and oblivion was 
sent up to the lords.^ But in that house the old royalists had 
a more decisive preponderance than among the commons. 
They voted to except all who liad signed the death-warrant 
against Cliarles I., or sat when sentence was pronounced, and 
five others by name. Hacker, Vane, Lambert, Haslerig, and 
Axtell. They struck out, on the other hand, the clause re- 
serving Lenthall and the rest of the same class for future 
penalties. They made other alterations in the bill to render 
it more severe ; ® and with these, after a pretty long delay, 

1 Journals, May 14. deserved hanging. Pari. Ili.ft. p. 162. 

* June 5, 6, 7. The first seven were Lenthall had tJiken some share in the 

Scott, HoilanU, Lisle, Barkstead, Ilarri- restoration, and entered into coirespond- 

son, Say, Jones. They went on to add ence with the king's advi.sers a little be- 

Coke. Broughton, Dendy. fore. Clar. State Papers, iii. 711, 720. 

3 These were Lenthall, Vane, Burton, Kennet's Register, 762. But the royalists 

Keble, St. .lohn. Ireton, Ilaslerig. Syden- never could forgive his haviiig put the 

ham. De^borough, Axtell, Lambert, Pack, question to the vote on the ordinance for 

Blackwell, Fleetwood. Pyne, Deau, Ci'eed, tryir.g the late king. 

Nye. Goodwin, and Cobbet : some of them < June 30. This w.-is carried without 
rather insignificant names. Upon the a division. Eleven were afterwards ex- 
words that " twenty and no more " be so cepted by name, as not having rendered 
excepted, two divisions took place, 160 to themselves : July 9. 
lot, and 153 to 105; the presbyterians 5 July 11. 

being the majority : June 8. Two other ' Tlie worst find most odious of their 

divisions took place on the names of Leu- proceedings, quite unworthy of a Chris- 

tball, carried by 215 to 126, and of White- tian and civilized assembly, was to give 

lock, lost by 175 to 134. Another motion the next relations of the four peers who 

was made afterwards against Whitelock had been executed under the coinmon- 

by Prynne. Milton was ordered to be wealth, Hamilton. Holland, Capel, and 

prosecuted separately from the twenty ; Derby, the privilige of naming each one 

so that they alre;idy broke their resolu- person (among the regicides) to be exe- 

tion. lie was put iu custody of the cuted. This was done in the three last 

sergeant-at arms, and released, December instjinces ; but lord Denbisrh, as Hamil- 

17. Andrew Marvell, his friend, soon ton's kinsman, nominated one who was 

afterwards complained that fees of the dead ; and, on this being pointed out to 

amount of 150 pounds had been extorted him, refused to fix on another. Journal, 

from him ; but Finch answered that Mil- Aug. 7. Ludlow, iii. 34. 
ton had been Cromwell's secretary, and 



CHA. II. -lGaO-73. FROM THE ACT OF INDEMNITY. 71 

and a positive message from the king, requesting them to 
hasten their proceedings (an irregularity to Avhich they took 
no exception, and which in the eyes of the nation was justi- 
fied by the circumstances), they returned the bill to the com- 
mons. 

The vindictire spirit displayed by the upper house was not 
agreeable to the better temper of the commons, where the 
presbyterian or moderate party retained great influence. 
Though the king's judges (sucli at least as had signed the 
death-warrant) were equally guilty, it was consonant to the 
practice of all humane governments to make a selection for 
capital penalties ; and to put forty or fifty persons to death 
for that offence seemed a very sanguinary course of proceed- 
ing, and not likely to promote the conciliation and oblivion so 
much cried up. But there was a yet stronger objection to 
this severity. The king ,had published a proclamation, in a 
few days after his landing, commanding his father's judges to 
render themselves up within fourteen days, on pain of being 
excepted from any pardon or indemnity, either as to their 
lives or estates. Many had voluntarily come in, having put 
an obvious construction on this proclamation. It seems to 
admit of little question that the king's faith was pledged to 
those persons, and that no advantage could be taken of any 
ambiguity in the proclamation, without as real perfidiousness 
as if the words had been more express. They were at least 
entitled to be set at liberty, and to have a reasonable time 
allowed for making their escape, if it were deter- ^. 

Discussions 

mined to exclude them from the indemnity.^ The between the 
commons were more mindful of the king's honor '^°"^''''* °" ''• 
and their own than his nearest advisers.^ But the violent 

1 Lord Southampton, according to Ltid- king's shoulders, but puts the case of 
low, actually moved this in the house of those who obeyed the proclamation on a 
lords, but was opposed by Finch : iii. 43. very different footing. The king, he pre- 

2 Clarendon uses some shameful chi- tends, had always e.xpected that none of 
canery about this (Life. p. 69); and with the regicides should be spared. Rut 
that inaccuracy, to say the least, so ha- why did he publish such a proclamation ? 
bitual to him, says, " the parliament had Clarendon, iiowever, seems to have l)een 
published a proclamation, that all who against the other exceptions from the 
did not render themselves by a day bill of indemnity, as contrary to some 
named should be judged as guilty, and expressions in thedeclaration from lireda, 
attainted of treason.'- The proclamation which had been inserted by Monk's ad- 
was published by the king, on the s\ig- vice; and thus wisely and honorably got 
gestion indeed of the lords and commons, rid of the twenty exceptions, wliich had 
and the expressions were what 1 have been sent up from the commons, )i. l;33. 
stated in the text. State Trials, v. 959. The lower house resolved to agree with 
Somers Tnicts, vii. 437. It is obvious the lords as to those twenty persons, or 
that by this nisrepresentatioa he not rather sixteen of them, by 197 to 102, 
only throws the blame of ill faith oU the HoUis and Morrice telling the ayes. 

VOL. II. — C. 6 



72 EXECUTION OF REGICmES. Chap, XL 

royalists were gaining ground among them, and it ended m 
a compromise. They left Hacker and Axtell, who had been 
prominently concerned in the king's death, to their tale. 
They even admitted the exceptions of Vane and Lambert, 
contenting tlu mselves with a joint address of both houses to 
the king, that, if they should be attainted, execution as to 
their lives might be reiliitted. Haslerig was saved on a 
division of 141 to IIG, partly through the intercession of 
Monk, who had pledged his word to liim. Most of the king's 
judges were entirely excepted ; but witli a proviso in favor 
of such as had surrendered according to the proclamation, 
that the sentence should not be executed without a special 
act of parliament.^ Others were reserved for penalties not 
extending to life, to be inflicted by a future act. About 
twenty enumerated persons, as well as those who had pro- 
nounced sentence of death in any of the late illegal high 
courts of justice, were rendered incapable of any civil or 
military office. Thus, after three months' delay, which had 
given room to distrust the boasted clemency and forgiveness 
of the victorious royalists, the act of indemnity was finally 
passed. 

Ten persons suffered death soon afterwards for the mur- 
Execution der of Charles I. ; and three more who had been 
ofregicides. seized in Holland, after a considerable lapse of 
time.*^ There can be no reasonable ground for censuring 
either the king or the parliament for their punishment, ex- 
cepl that Hugh Peters, though a very odious fanatic, was not 
so directly implicated in the king's death as many who es- 
caped, and the execution of Scrope, who had surrendered 
under the proclamation, was an inexcusable breach of failh.' 

1 Stat. 12 Car. II. c. 11. 3 it jg remarkable that Scrope had 

2 These were, iu the first instance, been so particularly favored by the con- 
Harrison, Scott, Scrope, Jones, Clement, vcntion parliament, aa to be exempted. 
CarevF, all of whom had signed the war- together with Hutchinson and Lascelle.f, 
rant. Cook, the solicitor at the high court from any penalty or forfeiture by a spe- 
of justice. Hacker and Axtell, who com- cial resolution : June 9. But the lords 
manded the guard on that occasion, and put in his name again, though they 
Peters. Two years afterwards. Downing, pointedly excepted Hutchinson ; and the 
ambassador in Holland, prevailed on the commons, after first resolving that he 
states to give up Barkstead, Corbet, and should only pay a fine of one )-.car's value 
Okey. They all died with great con- of his estate, came at last to agree in ex- 
Btancy, and an enthusiastic persuasion cepting him from the indemnity as to 
of the righteousness of their cause. State life. It appears that some private con- 
Trials, versation of Scrope had been betrayed, 

Pepys says in his Diary, 13th October, wherein he spoke of the king's death aa 

1660, of Harrison, whose execution he he thought. 

witnessed, that "he looked as cheerful As to Hutchinson, he had certainly 

as any man could do in that condition." concurred in the restoration, having an 



Cha II. — 1660-73. RESTITUTIONS. 73 

But nothing can be move sophistical than to pretend that 
such men as Ilollis and Annesley, who had been expelled 
from parliament by the violence of the same faction who put 
the king to death, were not to vote for their punishment, or 
to sit in judgment on them, because they had sided with the 
commons in the civil war.^ It is mentioned by many writers, 
and in the Journals, that when Mr. Lenthiill, son of the late 
speaker, in the very first days of the convention parliament, 
was led to say that those who had levied war against the 
king were as blamable as those who had cut off his head, 
he received a reprimand from the chair, which the tolly and 
dangerous consequence of his position well deserved ; for 
such language, though it seems to have been used by him in 
extenuation of the regicides, was quite in the tone of the 
violent royalists.^ 

A question apparently far more difficult was that of resti- 
tution and redress. The crown lands, those of the 
church, the estates in certain instances of eminent of^crown"*" 
royalists, had been sold by the authority of the and church 
late usurpers, and that not at very low rates, con- 
sidering the precariousness of the title. This naturally 
seemed a material obstacle to the restoration of ancient 
rights, especially in the case of ecclesiastical corporations, 
whom men are commonly less disposed to favor than private 
persons. The clergy themselves had never expected that 
their estates would revert to them in full propriety, and 
would probably have been contented, at the moment of the 
king's return, to grant easy leases to the purchasers. Nor 

extreme dislike to the party wlio had haps it may be thought that men of more 

turned out the parliament in Oct. 1659, delicate sentiments than either of these 

e.sppcially Lambert. This may be inferred po.sscs.^cd would not have Fat upon the 

from his conduct, as well as by what trial of those with whom they had long 

Ludlow says, and Kennet in his Uegister. professed to act in concert, though in- 

p. 1G9. liis wife puts a speech into liis uocent of their crime, 
mouth as to his share in the king's death, - Commons' Journals, May 12, 1C60. 

not absolutely justifying it, but, 1 sus- [Yet the balance of parties in the con- 

pect, stronger tlian he ventured to use. ventiou parliament was so equal, that on 

At least, the commous voted that he a resolution that receivers and collectors 

should be not excepted from the indem- of public money should be accountable 

nity, "on account of his signal repent- to the king for all moneys received by 

ance," which could hardly be predicated them since Jan. 30, 1G48-9. an amcnd- 

of the language she ascribes to him. ment to substitute the year ltJ42-3 was 

Compare Mrs. Hutchinson's Memoirs, p. carried against the presb) tcrians bj' 16-5 

367, with Commons' Jouruals, June 9. to 150. It was not designed that those 

1 Ilonice Walpole, in his Catalogue of who had accounted to the parliament 

Noble Authors, has thought lit to censure should actually refund what they had 

both thc.se persons for their pretended received, but to declare, indirectly, the 

Inconsistency. The case is however dif- illeg-ality of the parliamentary authority 

ferent as to Monk ani Cooper ; and per- Commons' Journals, June 2. — 1846 J 



74 RESTITUTIONS. Chap. XI. 

were (he house of commons, many of whom were interested 
in these sales, inclined lo let in the foi'mer owners without 
conditions. A bill was accordingly brought into the house 
at the beginning of the session to confirm sales, or to give 
indemnity to the purchasers. I do not find its provisions 
moi'e particularly stated. The zeal of the royalists soon 
caused the crown lands to be excepted.^ But the house ad- 
hered to the principle of composition as to ecclesiastical 
property, and kept the bill a long time in debate. At the 
adjournment in September the chancellor told them his maj- 
esty had thought much upon the business, and done much 
for the accommodation of many particular persons, and 
doubted not but that, before they met again, a good prog- 
ress would be made, so that the persons concerned would 
be much to blame if they received not full satisfaction, prom- 
ising al<o to advise with some of the commons as to that set- 
tlement.^ These expressions indicate a design to take the 
matter out of the hands of parliament. For it was Hyde's 
firm resolution to replace the church in the whole of its 
property, without any other regard to the actual possessors 
than the right owners should severally think it equitable to 
display. And this, as may be supposed, proved very small. 
No further steps were taken on the meeting of parliament 
after the adjournment ; and by the dissolution the parties 
were left to the common course of law. The church, the 
crown, the dispossessed royalists, reentered triumphantly on 
their lands : there were no means of repelling the owners' 
claim, nor any satisfaction to be looked for by the purchasers 
under so defective a title. It must be owned that the facility 
witli which this was accomplished is a striking testimony to 
the strength of the new government and the concurrence of 
the nation. This is the more remarkable, if it be true, as 
Ludlow informs us, that the chapter lands had been sold by 
the trustees appointed by parliament at the clear income of 
fifteen or seventeen years' purchase.^ 

The great body, however, of the suffering cavaliers, who 
had compounded for their delinquency under the ordinances 

» Pari. Hist. ir. 80. tent to give leases of their lands: p. 620, 

* Id. 129. 723. Hyde, however, was convinced 

3 Memoirs, p. 229. It appears by some that the church would be either totally 

passages in the Clarendon Papers that ruined, or restored to a great lustre: 

the church liad not expected to come off and herein he was right, as it turned 

BO brilliantly ; and, while the restoration out. P. C14. 

was yet unsettled, would have been con- 



Cha. II. — lGGO-73. SETTLEMENT 01<' THE REVENUE. 75 

of the long parliament, or whose estates had been for a 
time in sequestration, found no remedy for these ^.^^^ 
losses by any process of htw. The act of indem- of the 
nity put a stop to any suits they mi^ht have insti- "'"J'^''^'*' 
tuted against persons concerned in carrying these illegal ordi* 
nances into execution. They were compelled to put up with 
their poverty, having the additional mortification of seeing 
one class, namely, the clergy, who had been engaged in the 
same cause, not alike in their fortune, and many even of the 
vanquished republicans undisturbed in wealth which, directly 
or indirectly, they deemed acquired at their own expense.* 
They called the statute an act of indemnity for the king'a 
enemies, and of oblivion for his friends. They murmured at 
the ingratitude of Charles, as if he were bound to forfeit his 
honor and risk his throne for their sakes. They conceived 
a deep hatred of Clarendon, whose steady adherence to the 
great principles of the act of indemnity is the most honora- 
ble act of his public life. And the discontent engendered 
by their disappointed hopes led to some part of the opposi- 
tion afterwards experienced by the king, and still more cer- 
tainly to the coalition against the mini ster. 

No one cause had so eminently contributed to the dissen- 
sions between the crown and pai-liament, in the „ .,, . 

^ . , - Settlement 

two last reigns, as the disproportion between the of the 
public revenues under a rapidly-increasing depre- ''*''®°"®- 
ciation in the value of money, and the exigencies, at least on 
some occasions, of the administration. There could be no 
apology for the parsimonious reluctance of the commons to 
grant supplies, except the constitutional necessity of render- 
ing them the condition of redress of grievances ; and in the 
present circumstances, satisfied, as they seemed at least to be, 
with the securities they had obtained, and enamored of their 
new sovereign, it was reasonable to make some further pro- 
vision for the current expenditure. Yet this was to be 

1 Life of Clarendon, 99. L'Estrange, while those who stood up for the lawi 

In a pamphlet printed before the end of were abandoned to the comfort of an 

1660, complains that the cavaliers were irreparable but honorable ruin." Ha 

neglected, the king betrayed, the creat- reviles the presbjterian niini.sters Btill 

ures of Cromwell, Bradshaw, and St. in possession, and tells the king that 

John, laden with offices and honors. Of misplaced lenity was his father's ruin, 

the indemnity he says, '' That act made Keiiiiet's Register, p. 233. See, too, in 

the enemies to the constitution masters Somers Tracts, vii. 517. '"The Ilumbla 

in effect of the booty of three nations, Representation of the Sad Condition of 

bating the crown and church lands, all the King's Party." Also p. 657. 
which they might now call their own: 



76 EXCISE m LIEU OF Chap. XI. 

meted out ■with such prudence as not to place him beyond the 
necessity of frequent recurrence to their aid. A committee 
was accordingly appointed " to consider of settling such a 
revenue on his majesty as may maintain the splendor and 
grandeur of his kingly office, and preserve the crown from 
want and from being undervalued by his neighbors." By 
their report it appeared that the revenue of Charles I. from 
1G37 to 1641 had amounted on an average to about 900,000/., 
of which full 200,000/. arose from sources either not war- 
ranted by law or no longer available.'^ The house resolved 
to raise the present king's income to 1,200,000/. per annum, 
a sum perhaps sufficient in those times for the ordinary 
charges of government. But the funds assigned to produce 
his revenue soon fell short of the parliament's calculation.'' 

One ancient fountain that had poured its stream in to the 
Abolition ^'oyal treasury it was now determined to close up 
ofmiiitary forcver. The feudal tenures had brought with 
ExcisT' them at the Conquest, or not long after, those inci- 
granted deuts, as tlicy were usually called, or emoluments 
of seigniory, which remained after the military 
character of fiefs had been nearly elhiced, espeeially the right 
of detaining the estates of minors holding in chivalry without 
accounting for the profits. This galling burden, incompara- 
bly more ruinous to the tenant than beneficial to tlie lord, it 
had long been determined to remove. Charles, at the treaty 
of Newport, had consented to give it up for a fixed revenue 
of 100,000/. ; and this was almost the only part of that inef- 
fectual compact which tlie present parliament were anxious 
to complete. The king, though likely to lose much patron- 
age and influence, and what passed with lawyers for a high 
attribute of his prerogative, could not decently refuse a com- 
mutation so evidently advantageous to the aristocracy. No 
gi'eat difference of opinion subsisting as to the expediency 
of taking away miliiaiy tenures, it remained only to decide 
from what resources the commutation revenue should spring. 



1 [Commons' Journals, Sept. 4. 1600 ^ 1,200,000^. voted by parliament. Sea 
which I quote from "Letter to the Kev. his Diary, March 1, 1664. Kalph, how- 
T. Carte " (in 1749), p. 44. This seems ever, says, the iacome in 1662 waa 
to have been exclusive of ship-mouey. — 1,120.593-'., though the expenditure was 
1845.] 1,439,000/. : p. 88. It appears probable 

2 Commons' Journals, September 4, that the hereditary excise did not yet 
1660. Sir Philip Warwick, chancellor of produce much beyond its estimate. 1(1 
the exchequer, assured Pepys that the p. 20. 

cevenue foU short by a fourth of the 



Cha. II.— luGO-73. mLITAKY TENURES. 77 

Two Kchemes were suggested; the one, a permanent tax on 
lands held in chivaUy (which, as distinguished from those in 
socage, were alone liable to the feudal burdens) ; tlie other 
an excise on beer and some other liquors. It is evident thar 
the foi'mer was founded on a just principle, while the latter 
transferred a particular burden to the community. But the 
self-interest which so unhappily predominates even in repre- 
sentative assemblies, with the aid of the courtiers, who knew 
that an excise increasing with the riches of the country was 
far more desirable for the crown than a fixed land-tax, 
caused the former to be carried, though by the very small 
majority of two voices.^ Yet even thus, if the impoverish- 
ment of the gentry, and dilapidation of their estates through 
the detestable abuses of ward-hip, was, as cannot be doubted, 
very mischievous to the inferior classes, the whole community 
must be reckoned gainers by the arrangement, thought it 
might have been conducted in a more equitable manner. 
.^The statute 12 Car. 11. c. 24, takes away the court of wards, 
with all wardships and forfeitures for marriage by reason of 
tenure, all primer seisins and fines for alienation, aids, escu- 
ages, homages, and tenures by chivalry without exception, 
save the honorary services of grand sergeanty ; converting al. 
such tenures into common socage. The same statute abol- 
ishes those famous rights of purveyance and preemption, the 
fruitful theme of so many complaining parliaments ; and 
this relief of the people from a genei'al burden may serve in 
some measure as an apology for the imposition of the excise. 
This act may be said to have wrought an important change 
in the spirit of our constitution, by reducing what is emphat- 
ically called tlie prerogative of the crown, and which, by its 
practical exhibition in these two vexatious exercises of power 
wardship and purveyance, kept up in the minds of the peopi- 
a more distinct perception, as well as more awe, of the mon- 
archy, than could be felt in later periods, Avhen it has become, 
as it were, merged in the common course of law, and blended 
with the very complex mechanism of our institutions. Ihis 
great innovation, however, is properly to be referred to the 
revolution of 1041, which put an end to the court of stap 
chamber, and suspended the feudal superiorities. Hence 

1 Nov. 21. IGGO, 151 to 149. Pari, of wliat alreaay was paid by yirtue of 

nut. [It is to be observed, as some ex- ordinances under the commonwealth — 

cuse for the commons, tliat the lieredi- 1S15.] 
tary excise thus granted was one moiety 



78 AKMY DISBANDED. Chap. XL 

with all the misconduct of tbe two last Stuarts, and all the 
ten<lency towards arbitrary power that their government 
often displayed, we must perceive that the constitution had 
put on, in a very great degree, its modern character during 
that period ; the boundaries of prerogative were better under- 
stood ; its pretensions, at least in public, were less enormous ; 
and not so many violent and oppressive, certainly not so 
many illegal, acts were committed towards individuals as 
under the two first of their family. 

In fixing upon 1,200,000^. as a competent revenue for the 
Army dis- crown, the commons tacitly gave it to be under- 
banded, stood that a regular military force was not among 
the necessities for which they meant to provide. They 
looked upon the army, notwithstanding its recent services, 
with that apprehension and jealousy which became an Eng- 
lish house of commons. They were still supporting it by 
monthly assessments of 70,000^., and could gain no relief by 
the king's restoration till that charge came to an end. A bill 
therefore was sent up to the lords before their adjournment 
in September, providing money for disbanding the land forces. 
This was done during the recess : the soldiers received their 
arrears willi many fair words of praise, and the nation saw 
itself, with delight and thankfulness to the king, released 
from its heavy burdens and the dread of servitude.^ Yet 
Charles had too much knowledge of foreign countries, where 
monarchy flourished in all its plenitude of sovereign poAver 
under the guardian sword of a standing army, to part readily 
with so favorite an instrument of kings. Some of his coun 
sellers, and especially the duke of York, dissuaded him from 
disbanding the army, or at least advised his supplying its 
place by another. The unsettled state of the kingdom after 
80 momentous a revolution, the dangerous audacity of the 
fanatical party, whose enterprises wei'e the more to be 
guarded against because they were founded on no such cal- 
culation as reasonable men would form, and of which the 
insurrection of Venner in November, 16 GO, furnished au 
example, did undoubtedly appear a very plausible excuse for 
something more of a military protection to the government 
than yeomen of the guard and gentlemen pensioners. Gen- 

1 The troop3 disbanded Tvere fourteen in Scotland, besides garnsons. Joumalai 
regiments of horse aud eighteen of foot Nov. 7. 
in England ; one of horse and four of foot 



Ch4. II. — 1660-73. THE CLERGY RESTORED. 79 

eral Monk's regiment, called the Coldstream, and one other 
of horse, were accordingly retained by the king in his ser- 
vice ; another was foimed out of troops brought from Dun- 
kirk ; and thus began, under the name of guards, the present 
regular army of Great Britain.^ In 1662 these amounted to 
about 5000 men ; a petty force according to our present 
notions, or to the practice of other European monarchies ia 
that age, yet sufficient to establish an alarming precedent, 
•rind to open a new source of contention between the support- 
ers of power and those of freedom. 

So little essential innovation had been effected by twenty 
years' interruption of the regular government in the com- 
mon law or course of judicial proceedings, that, when the 
king and house of lords were restored to their places, little 
more seemed to be requisite than a change of names. But 
what was true of the state could not be applied to the church. 
The revolution there had gone much farther, and the ques- 
tions of restoration and compromise were far more difficult. 

It will be remembered that such of the clergy as steadily 
adhered to the episcopal constitution had been ex- 
pelled from their benefices by the long parliament restored 
under various pretexts, and chiefly for refusing to ^t-nefices. 
take the covenant. The new establishment was 
nominally presbyterian. But the presbyterian discipline and 
synodical government were very partially introduced ; and, 
upon the whole, the church, during the suspension of the 
ancient laws, was rather an assemblage of congregations than 
a compact bodj^, having little more unity than resulted from 
their common dependency on the temporal magistrate. In 
the time of Cromwell, who favored the independent sectaries, 
some of that denomination obtained livings ; but very few, I 
believe, comparatively, who had not received either episcopal 
or presbyterian ordination. The right of pi'ivate patronage 
to benefices, and that of tithes, though continually menaced 
by the more violent party, subsisted without alteration. 
Meanwhile the episcopal ministers, though excluded from 
legal toleration along with papists, by the instrument of gov- 
ernment under which Cromwell professed to hold his power, 
obtained, in general, a sufficient indulgence for the exercise 
of their function.^ Once, indeed, on discovery of the royalis* 

I Ralph. 35 ; Life of James, 447 ; Grose's 2 Nea'i, 429, 444. 
Uilitary Antiquities, i. 61. 



80 HOPES OF TKESBYTERIANS Chap. XI 

conspiracy iu 1G55, he published a severe ordinance, forbid- 
ding every ejected minister or fellow of a college to act as 
domestic chaplain or schoolmastei'. But this was coupled 
with a promise to show as much tenderness as mijjht consist 
with the safety of the nation towards such of the said persons 
as shoidd give testimony of their good affection to the gov- 
ernment ; and, in point of fact, this ordinance was so far 
from being rigorously observed, that episcopalian conventi 
cles were openly kept iu London.-' Cromwell was of 
really tolerant disposition, and there had perhaps, on the 
whole, been no period of equal duration wherein the cath- 
olics themselves suffered so little molestation as under the 
protectorate.- It is well known that he permitted the set- 
tlement of Jews in England, after an exclusion of nearly 
three centuries, in spite of the denunciations of some bigoted 
churchmen and lawyers. 

The presbyterian clergy, though cooperating in the king's 
restoration, experienced very just apprehensions 
thtTpic^by- of the church they had supplanted ; and this was 
'h''k"^.r^°™ iu hict one great motive of the restrictions that 
"■ party was so anxious to impose on him. . His 
character and sentiments wei'e yet very imperfectly known 
in England ; and much pains wci'e taken on both sides, by 
short pamphlets, panegyrical or defamatory, to represent him 
as the best Englishman and best protestant of the age, or 
as one given up to profligacy and popery.^ The caricature 

1 Neal, 471. Pepys's Diary, ad iuit. lock tells us he opposed it, 625. It was 
Even iu Oxford, about 300 episcopalians not acted upon. 

used to meet every Suuday with the con- ^ Several of these appear in Somers's 

nivance of Dr. Owen, dean of Chri.st Tracts, vol. vii. The king's nearest friends 

Church. Orme's Life of O.vcn, 1S8. It were of course not backward iu praising 

is somewhat bold in Anglican writers ta him, though a little at the expense of 

complain, as they now and then do, of their consciences. " In a wortJ," say.s 

the persecution they suffered at this pe- Hyde to a correspondent iu 1659, '' if 

riod, when we consider what had been being the best protestant and the best 

the conduct of the bishops before, and Englishman of the nation can do the king 

what it was afterwards. I do not know good at home, he must prosper with and 

that any member of the church of Eng- by his own subjects." Clar. State Papers, 

land was imprisoued under the commou- 541. Morley says he had been to see 

wealth, except for some political reason ; judge Hale, who asked him questions 

certain it is that the jails were not £;.ed about the king's character and firmness 

with them. in the protestant religion. Id. 73j. Mor- 

2 The penal laws were comparatively ley's exertions to dispossess men of the 
dormant, though two priests suffered notion tliat the king and his brother were 
death, one of them before the protector- inclined to popery are also mentioned by 
ate. Butler's Mem. of CathoUcs, ii. 13. Kennet in his Register, 818 ; a book con- 
But in 1635 Cromwell issued a proclama- taining very copious infjrmatioii as to 
tion for the execution of these statutes ; this particular period. Yet Morley could 
which seems to have been provoked by hardly have been without strong suspi 
tile persecution of the Vaudois. White- cions as to both of them. 



Cha. 11.-1660-73. FKOM THE KING. 81 

likeness was, we must now acknowledge, more true than the 
other; but at that time it was fair and natural to dwell on 
the more pleasing picture. The presbyterians remembered 
that he was what they called a covenanted king ; that is, that, 
for the sake of the assistance of the Scots, he had submitted 
to all the obligations, and taken all the oaths, they thought 
fit to impose.^ But it was well known that, on the fiiilui-e 
of those prospects, he had returned to the church of Eng- 
land, and that he was surrounded by its zealous adherents. 
Charles, in his declaration from Breda, promised to grant 
liberty of conscience, so that no man should be disquieted or 
called in question for differences of opinion in matters of re- 
ligion which do not disturb the peace of the kingdom, and 
to consent to such acts of |)arliament as should be offered to 
bim for confirming that indulgence. But he was silent as to 
the church establishment ; and the prcsbyterian ministers, 
who went over to present the congratulations of their body, 
met with civil language, but no sort of encouragement to 
expect any personal compliance on the king's part with their 
mode of worship.^ 

The moderate party in the convention parliament, though 
not absolutely of the prcsbyterian interest, saw pj,o-gptg 
the danger of permitting an oppressed body of for a com- 
churchmen to regain their superiority without P'^°'"'^'^- 
some restraint. The actual incumbents of benefices were 
on the whole a respectable and even exemplary class, most 
of Avhom could not be reckoned answerabf& for the legal 
det'ects of their title. But the ejected ministers of the An- 
glican church, who had endured for their attachment to its 
discipline and to the crown so many years of poverty and 
privation, stood in a still more favorable light, and had 
an evident claim to restoration. The commons accordingly, 

1 Uc had written in cipher to secretary "I see clearly." ho writes on .Tune 10, 

Nicholas, from St. Johnston's, Sept. 3, " the general will not slaml by the pres- 

1650, the diy of tlio battle of Dunbar, bvteriins; they talk of clo.sin;; with mod- 

" Nothing could have confirmed me more crate episcopacy for fear of wor.>e." And 

to the church of England than being here, on June 23. ''AH is wrong hero as to 

seeing their hypocrisy." Supplement to church afl.iirs. Kpiscopacy will be set 

Evelyn's Diary, 133. The whole letter tied here to the height ; their lauds will 

shows that he was on the point of giving be all restored. None of the presbyte- 

his new friends the slip ; as indeed he rian way here oppose this, but mourn 

attempted sojn after, in what was called in secret." •' The generality of the peo- 

the Start. I^aing, iii. 463. pie are doting after prelacy and the ser- 

- [Several letters of Sharp, then in vice-book." He found to his cost thai 

London, are published in Wodrow's it wius much otherwise in Scotland.— 

'History of the Cliurch of Scotland," 1845.] 
which I quote from Kennet's Hesister. 



82 PE0JE<;TS for Chap. XL 

before the king's return, prepared a bill for confirming and 
restoring ministers, witli the twofold object of replacing in 
their benefices, but without their legal right to the interme- 
diate profits, the episcopal clergy who by «^jection or forced 
surrender had made way for intruders, and at the same time 
of establishing the possession, though originally usurped, of 
those against whom there was no claimant living to dispute 
it, as ^velI as of those who had been presented on legal va- 
cancies.^ This act did not pass without opposition from the 
cavaliers, Avho panted to retaliate the persecution that had 
afilicted their church.^ 

This legal security, however, for the enjoyment of their 
livings gave no satisfaction to the scruples of conscientious 
men. The episcopal ^discipline, the Anglican liturgy and 
ceremonies, having never been abrogated by law, revived of 
course with the constitutional monarchy ; and brought with 
them all the penalties that the act of uniformity and other 
statutes had inflicted. The non-conforming clergy threw 
themselves on the king's compassion, or gratitude, or policy, 
for relief. The independents, too irreconcilable to the es- 
tablished church for any scheme of coniprebension, looked 
:>nly to that liberty of conscience which the kings declara- 
tion from Breda had held forth.^ But the presbyterians 
soothed themselves with hopes of retaining their benefices 
by some compromise with their adversaries. They had 
never, generally speaking, embraced the rigid principles of 
the Scottish clergy, and were willing to admit what they 

1 12 Car. IT. c. 17. It is quite clear acts of parliament might not grow into 
that an usurped possession was confirmed disuse. Many got the additional secuiity 
by this act, where the lawful incumbent of such patents ; v>'hich proved of service 
was dead [though Burnet intimates that, to them, when the next parliament did 
this statute not having been confirmed not think fit to confirm this important 
by the next parliament, those who had statute. Baxter says, p. 241. some got 
originally conie in by an unlawful title, letters-patent to turn out the pos.sessors, 
were expelled by course of law. This I where the former incumbents were dead, 
am inclined to doubt, as such a proceed- These must have been to benefices in the 
ing would have assumed the invalidity gift of the crown ; in other ca.?es letters- 
of the laws enacted in the convention patent could have been of no effect. I 
parliament. But we find by a case re- have found this confirmed by the Jour- 
ported in 1 Ventris, that the judges would nals, Aug. 27, 16G0. [But compare the 
not suffer these acts to be disputed. — preceding note, which leaves some doubt 
184.5.] on the facts of the case.] 

- Pari. Hist. 94. The chancellor, in 3 Upon Venner's insurrection, though 

his speech to the houses at their adjourn- the sectaries, and especiallj- the indepen- 

mcnt in September, gave them to under- dents, published a declaration of their 

stand that this bill was not quite satis- abhorrence of it, a pretext was found 

factory to the court, who. preferred the for issuing a proclamation to shut up 

confirmation of ministers by particular the conventicles of the anabaptists and 

letters-patent under the great seal ; that quakers, and so worded as to reach all 

the king's prerogative of dispensing with others. Kennet's Register, 357. 



Cha. II.— 1660-73. A COMrKOMISE. 83 

called a moderate episcopacy. They offered, accordingly, 
on the king's request to know their terms, a middle scheme, 
usually denominated Bishop Usher's Model ; not as alto- 
gether approving it, but because they could not hope for 
anything nearer to their own views. This consisted, first, 
in the appointment of a suffragan bishop for each rural 
deanery, holding a monthly synod of the presbyters within 
his district ; and, secondly, in an annual diocesan synod of 
suffragans and representatives of the presbyters, under the 
presidency of the bishop, and deciding upon all matters 
before them by plurality of suffrages.^ This is, I believe, 
considered by most competent judges as approaching more 
nearly than our own system to the usage of the jii-imitive 
church, which gave considerable influence and superiority 
of rank to the bishop, without destroying the aristocratical 
character and coordinate jurisdiction of the ecclesiastical sen- 
ate.^ It lessened also the inconveniences supposed to result 
from the great extent of some English dioceses. But, though 
such a system was inconsistent with that parity which the 
rigid presbyterians maintained to be indispensable, and those 
who espoused it are reckoned, in a theological division, 

t Collier, 869, 871 ; Baxter, 232, 238. one of their own number for a chief or 
The bishops said, in their answer to the president ; 3. That there is no rex'on to 
presbyterians' proposals, that the objec- consider any part of the apostolical disci- 
tions agaiust a single person's adminis- pliue as an invariable model for future 
tration in the church were equally appli- ages, and that much of our own ecclesi- 
cable to the state. Collier, 872. But astical polity cannot any way pretend to 
this was false, as they well knew, and primitive authority ; 4. That this has 
designed only to produce an effect at been the opinion of all the most eminent 
court; for the objections were not theologians at home and abroad; 5. 
grounded on reasoning, but on a pre- That it would be expedient to introduce 
Bumed positive institution. Besides various modifications, not on the whole 
which, the argument cut against them- much different from the scheme of Usher, 
selves: for. if the English constitution, Stillingfleet, whose work is .a remarkable 
or something analogous to it, had been instance of extensive learning and ma- 
established in the church, their adver- ture judgment at the age of .about 
saries would have had all they now twenty-three, thought fit afterwards to 
asked. retract it in a certain degree; and tow- 

s Stillingfleet's Irenicum. King's In- ards the latter part of bis life gave in to 
quiry into the Constitution of the Primi- more high-church politics. It is true 
tive Church. The former work was pub- that the Irenicum must have been com- 
lished at this time, with a view to mod- posed with almost unparalleled rapidity 
erate the pretensions of the Anglican for such a work; but it shows, as far as I 
party, to which the author belonged, by can judge, no marks of precipitancy, 
showing: 1. That there are no sufficient The biographical writers put its publi- 
data for determining with certainty the cation in I'iJ'J ; but this must be a mis- 
form of church government in the apos- take ; it could not have passed the press 
tolical age, or that which immediately on the 24th of March, 1600, the latest 
followed it; 2. That, as far as we may day which could, according to the old 
probably conjecture, the primitive style, have admitted the date of 1659, 
church was framed on the model of as it contains allusions to the kind's 
the synagogue ; that is, .a synod of restoration. 
priests ia every congreijation, having 



84 CHARLES DECLARES IN ITS FAVOR. Chap. Xi 

among episcopalians, it was in the eyes of equally rigid 
churchmen little better than a disguised presbytery, and a 
real subversion of the Anglican hierarchy.^ 

The presbyterian ministers, or rather a few eminent per- 
sons of tliat class, proceeded to solicit a revision of the lit- 
urgy, and a consideration of the numerous objections which 
they made to certain passages, while they admitted the law- 
fulness of a prescribed form. They implored the king also 
to abolish, or at least not to enjoin as necessary, some of 
those ceremonies which they scrupled to use, and which in 
fact had been the original cause of their schism ; the sur- 
plice, the cross in baptism, the pi'actice of kneeling at the 
communion, and one or two more. A tone of humble sup- 
plication pervades all their language, which some might in- 
vidiously contrast with their unbending haughtiness in pros- 
perity. The bishops and other Anglican divines, to Avhom 
their propositions were referred, met the offer of capitulation 
with a scornful and vindictive smile. They held out not the 
least overture towards a compromise. 

The king, however, deemed it expedient, during the con- 
tinuance of a parliament the majority of whom were desir- 
ous of union in the church, and had given some indications 
of their disposition,- to keep up the delusion a little longer 
and prevent the possible consequences of despair. He had 
already appointed several presbyterian ministers his chap- 
lains, and given them frequent audiences. But during the 
recess of parliament he published a declaration, wherein, 
after some compliments to the ministers of the presbyterian 
opinion, and an artful expression of satisfaction that he had 
found them no enemies to episcopacy or a liturgy, as they 

had been reported to be, he announces his inten- 
dedaratioa tion to appoint a Sufficient number of suffragan 
in favor bishops in the larger dioceses; he promises that 

no bishop should ordain or exercise any part of 
his spiritual jurisdiction without advice and assistance of hia 

1 Baxter's Life. Neal. [The episco- churches. But those few, " hy theii 

paliaus, according to Baxter, were of parts and interest in the nobility and 

two kinds, " tlie old common moderate gentry, did carry it at last against the 

sort," who took episcopacy to be good, other party." Baxter's Life, part 2, p. 

but not necessary, and owned the other 149. — 1845.] 

reformed to be true chui-ches; and those - They addressed the king to call such 

who followed Dr. Hammond, and were divines as he should think fit, to advis« 

very few : their notion was that presby- with concerning matters of religion 

ters in Scripture meant bishops exclu- July 20, 1C60. Journals and Pari 

sively, and they set aside the reformed llist. 



Cha. n. — 1G60-73. ILL-FAITH OF THE KING. 85 

presbyters ; that no chancellors or officials of the bishops 
should use any jurisdiction over the ministry, nor any arch- 
deacon without the advice of a council of his clergy ; that 
the dean and chapter of the diocese, together with an equal 
number of presbyters, annually chosen by the clergy, should 
be always advising and assisting at all oi'dinations, church 
censures, and other important acts of spiritual jurisdiction. 
He declared also that he would appoint an equal number of 
divines of both persuasions to revise the liturgy ; desiring 
that in the mean time none would wholly lay it aside, yet 
promising that no one should be molested for not using it till 
it should be reviewed and reformed. AVitli regard to cer- 
emonies, he declared that none should be compelled to re- 
ceive the sacrament kneeling, nor to use the cross in baptism, 
nor to bow at the name of Jesus, nor to wear the surplice 
except in the royal chapel and in cathedrals, nor should sub- 
scription to articles not doctrinal be required. He renewed 
also his declaration from Breda, that no man should be called 
in question for differences of religious opinion not disturbing 
the peace of the king;dom.^ 

Though many of the presbyterian party deemed this mod- 
ification of Anglican episcopacy a departure from their no- 
tions of an apostolic church, and inconsistent with their cov- 
enant, the majority would doubtless have acquiesced in so 
extensive a concession from the ruling power. If faithfully 
executed according to its apparent meaning, it does not seem 
that the declaration falls very short of their own proposal, 
the scheme of Usher.^ The high-churchmen, indeed, would 

1 Pari. nist. Neal, Baxter, Collier, if they disagreed, lorda Anglesea and 

&c. liurnet says that Clarendon had Uollis to decide. 

made the king publish this declaratiou ; - The chief objection made by the 

" but the bisliops did not approve of presbyturiaus. as far as we learn from 

this ; and. after the service they did that Baxter, was, that the consent of presby- 

lord in tlie duke of York's marriage, ters to the bishops' acts was not promised 

he would not put any hardship on by the declaration, but only their ad rice; 

those who had so signally obliged him." a distinction apparently not very ma 

This is very invidious. I know no evi- terial in practice, where the advice was 

dence that "the declaration was published apparently made obligatory, but bearing 

at Clarendon's suggestion, except indeed pcihaps on the great point of coatro 

that he w.is the great adviser of the ver.sy, whether the difference between 

crown ; yet in some things, especially the two were in order or in degree. The 

of this nature, the king seems to have king would not come into the scheme of 

acted without his concurrence, lie cer- consent; though they pressed him with 

tainly speaks of the declaration as if he .a passage out of the Icou Lasilikc, where 

did not wholly relish it (Life, 75), and his father allowed of it. Life of Baxter, 

Joes not state it fairly. In State Trials, 270. Some alterations, however, wer« 

Vi. 11, it is said to have been drawn up made in consequence of their sugge* 

by Morley and Henchman for the churcli, tious. 
Euyuolds and (Jalamy for the dissenters ; 



86 CONVENTION PARLIAMENT DISSOLVED. Chap. XI. 

have murmured had it been made effectual. But such as 
were nearest the king's councils well knew that nothing else 
was intended by it than to scatter dust in men's eyes, and to 
prevent the interference of parliament. This was soon ren- 
dered manifest, when a bill to render the king's declaration 
effectual was vigorously opposed by the courtiers, and re- 
jected on a second reading by 183 to 157.-' Nothing could 
more forcibly demonstrate an intention of breaking faith with 
the presbyterians than this v'ote. For the king's declaration 
was repugnant to the act of uniformity and many other stat- 
utes, so that it could not be carried into effect without the 
authority of parliament, unless by means of such a general 
dispensing power as no parliament would endure.^ And it is 
impossible to question that a bill for confirming it would have 
easily passed throngh this house of commons had it not been 
for the resistance of the government. 

Charles now dissolved the convention parliament, having 
Convention obtained from it what was immediately necessary, 
parliament but Well aware that he could better accomplish his 
dissolved. objects with another.^ It was studiously incul- 
cated by the roj-alist lawyers, that, as this assembly had not 
been summoned by the king's writ, none of its acts could 
have any real validity, except by the confirmation of a true 
parliament.* Tiiis doctrine, being applicable to the act ot 

1 Pari. nist. 141, 152. Clarendon, 76, houses. Uis speech is long and eloquent, 
most strangely observes on this, '' Some expressive of nothing but satisfaction, 
of the leaders brought a bill into the and recommending harmony to all class- 
hovise for the making tiiat declaration a es. One passage is eloquent enough to 
law, which was suitable to their other be extracted: "'They are too much in 
acts of ingenuity to keep the church for- love with England, too partial to it, who 
ever under the san:e indulgence and believe it the best country in the world; 
without any settlement ; which being there is a better earth, and a better air, 
quickly perceived, there was no further and better, that is, a warmer sun in 
progress in it." The bill was brought in other countries; but we are no more 
by sir Matthew Hide. than just when we say that England is 

2 Collier, who of course thinks this an enclosure of the best people in the 
declaration an encroachment on the world, when they are well informed and 
church, as well as on the legislative instructed ; a people, in sobriety of con- 
power, sjiys, " For this reason it was science, the most devoted to God Al- 
overlooked at the assizes and sessions in mighty; in the integrity of their affec- 
Beveral places iu the country, where the tions, the most dutiful to the king; in 
dissenting ministers were indicted for not their good manners and inclinations, 
conforming pursuant to the laws in most regardful and loving to tlie nobility ; 
force: " p. 8TG. Neal confirms this, 586, no nobility in Kurope so entirely beloved 
and Kennet's Register, 374. by the people; there ni.ay be more awe 

3 [After the king had concluded his and fear of them, but no such respect 
own speech by giving the royal assent to towards them as in England. I beseech 
many bills at the prorogation of the con- j'our lordships do not undervalue this 
vention parliament, the lord chancellor love," &c. I'arl. Hist. iv. 170. — 1845.1 
Hyde (not then a peer) requested his •• Life of Clarendon, 74. A plausible 
majesty's permission to address the two and somewhat dangerous attack had been 



CnA. II. — lt;G0-73. THE NEW PARLIAMENT. 87 

indemnity, left the kingdom in a precarious (iondition (ill an 
undeniable security could be obtained, and rendered the dis- 
solution almost necessary. Another parliament was called, 
of very diilcrent composition fiom the last. Possession and 
the standing ordinances against royalists had enahled the 
secluded members of 1G48, that is, the adherents of th(i long 
parliament, to stem with some degree of success the impet 
uous tide of loyalty in the last elections, and put them almost 
upon an equality with the court. But in the new assembly 
cavaliers and the sons of cavaliers entirely predominated ; 
the great families, the ancient gentry, the episcopal clergy, 
resumed their influence ; the preshyterians and sectarians 
feared to have their offences remembered; so that we may 
rather be surprised that about fifty or sixty who had be- 
longed to the opposite side found places in such a parliament, 
than that its general complexion should be decidedly royalist. 
The presbyterian faction seemed to lie prostrate at the feet 
of those over whom they had so long triumphed, without any 
force of arms or civil convulsion, as if the king had been 
brought in against their will. Nor did the cavaliers fail to 
treat them as enemies to monarchy, though it was notorious 
that the restoration was chiefly owing to their endeavors.^ 

The new parliament gave the first proofs of their disposi- 
tion by votinir that all their members should re- 

-, ° . , . 1 T , Different 

ceive the sacrament on a certam day accordmg to couipiexioa 
the rites of the church of England; and that the °^^{|^^g^j 
solemn league and covenant should be burned by 

made on the authority of this parliament general. Nothing more, probably, took 

from an oppo.-iite iiuaiter, iu a pamphlet place. Pari. Uist. 145, 157. This was ia 

written by one Drake, under the name November and December 16G0 : but 

of Thomas I'hihps, entitled "The Long Drake's book seems still to have been 

Parliament Ivevived," and intended to in considerable circulation ; at least I 

prove that by the act of the late king, have two editions of it, both bearing the 

providing that they should not be dis- date of ItJGl. The argument it contaiug 

solved but by the concurrence of the is purely legal; but the aim must havo 

whole legislature, they were still in ex- been to serve the presbyterian or parlia- 

istence ; and that the king's demise, meutarian cause. [The next parliament 

which legally puts an end to a parha- never give their predecessors any other 

meut, could not affect one that was de- name iu the Journals than " the last as- 

clared permanent by so direct an enact- sembly." ] 

meut. This argiuncnt seems by no ' Complaints of insults on the presby- 
means inconsiderable ; b-'.t the times terian clergy were made to the late par- 
were not such as to admit of technical liament. Pari. Hist. ItiO. The Anglicans 
reasoning. The convention parliament, inveighed grossly against them on the 
after questioning Drake, finally sent up score of their past conduct, notwith- 
articles of impeachment against him; standing the act of indemnity. Kennet'B 
but the lords, after hearing him in his Register, 156. See, as a specimen, South'i 
defence, when he confessed his fault, left Sermons, passim. 
him to be prosecuted by the attorney- 
VOL. II. — C. 7 



88 CONDEMNATION OF VANE. CnAp. XI 

the common hangman.* They excited still more serious alarm 
by an evident I'eluctance to confirm the late act of indemnity, 
which the king at the opening of the session had pressed 
upon their attention. Those who had suffered the sequestra- 
tions and other losses of a vanquished party could not en- 
dure to abandon what they reckoned a just reparation. But 
Clarendon adhered w-ith equal integrity and prudence to this 
fundamental principle of the Restoration ; and, after a strong 
message from the king on the subject, the commons were 
content to let the bill pass with no new exceptions.^ They 
gave, indeed, some relief to the ruined cavaliers by voting 
GO,OOU/. to be distributed among that class ; but so inade- 
quate a compensation did not assuage their discontents. 

It has been mentioned above that the late house of com- 
Condenina- mons had Consented to tlie exception of Vane and 
tionoivane. Lambert from indemnity on the king's promise 
that they should not suffer death. They had lain in the 
Tower accordingly, without being brought to trial. The 
regicides who had come in under the proclamation were 
saved from capital punishment by the former act of indem- 
nity. But the present parliament abhorred this lukewarm 
lenity. A bill was brought in for the execution of the king's 
judges in the Tower; and the attorney -general was re- 

1 Journals, 17th of May, 1661. The in Lancashire a tablet is placed to corn- 
previous question was moved on this meuiorate the ingratitude of Oliarles II. 
vote, but lost by 228 to 103 ; Morice, the in having refused the royal assent to a 
Becretiiry of state, being one of the tellers bill which had passed botli houses for re- 
for the minority. Monk, I believe, to storing the sou of the earl of Derby, who 
whom Morice owed his elevation, did had lost his life in the royal cause, to hia 
what he could to prevent violent meas- family estate. This has been so often 
ures against the presbyterians. Alder- reprinted by tourists and novelists that it 
man Love was suspended from sitting in passes currently for a just reproach on the 
the house, July 3, for not having taken king's memory. It was. however, in fact, 
the sacrament. I suppose that he after- one of his most hononible actions. The 
wards conformed ; for he became an ac- truth is, that the cavalier faction carried 
tive member of the opposition. through parliament a bill to make void 

- Journals. June 14, &c. ; P.irl. Hist, the conveyances of some manors which 
209; Li.'e of Clarendon, 71 ; Burnet, 230. lord Derby had voluntarily sold before 
A bill discharging the loyalists from all the restoration, in the very face of the act 
interest exceeding three per cent, on of indemnity, and against all law and 
debt.s contracted before the wars passed justice. Clarendon, who, together with 
the commons, but was dropped in the some very respectable peers, had protest- 
other house. The great discontent of ed against tliis measure in the upper 
this party at the indemnity continued to house, thought it his duty to recommend 
show itself in subsequent sessions. Clar- the king to refuse his assent. Lords' 
endon mentions, witii much censure, that Journals, Feb. 6 and May 14, 1662. There 
many private bills passed about 1662, is so much to blame in both the minister 
annuUing conveyances of lands made and bis master, that it is but fair to give 
during the troubles : p. 162, 163. One them credit for that which the pardon- 
remarkable instance ought to be noticed able prejudices of the family interested 
as having been greatly misrepresented, have led it to misstate. 
At the earl of Dei by 's seat of Knowsley 



Cha. II. — 1660-73. ITS INJUSTICE. 89 

quested to proceed against Vane and Lambert.^ The ibrmei 
■was dro[)ped in the house of lords ; but those formidable 
chiefs of the commonwealth were brought to trial. Their 
indictments alleged as overt acts of high-treason againai 
Charles II. their exercise of civil and military functions 
ander the usurping government ; though not, as far as ap' 
pears, expressly directed against the king's authoi'ity, and 
certainly not against his person. Under such an accusation 
many who had been the most earnest in the king's restora- 
tion might have stood at the bar. Thousands might apply 
to themselves, in ihe case of Vane, the beautiful expression 
of Mrs. Hutchinson, as to her husband's feelings at the death 
of the regicides, that " he looked on himself as judged in 
their judgment, and executed in their execution." The 
stroke fell upon one, the reproach upon many. 

The condemnation of sir Henry Vane was very question- 
able, even according to the letter of the law. It its in- 
was plainly repugnant to its spirit. An excellent Justice, 
statute enacted under Henry VII., and deemed by some 
great writers to be only declaratory of the common law, but 
occasioned, no doubt, by some harsh judgments of treason 
■which had been pronounced during the late competition of 
the houses of York and Lancaster, assured a perfect in- 
demnity to all persons obeying a king for the time being, 
however defective his title might come to be considered 
when another claimant should gain possession of the throne. 
It established the duty of allegiance to the existing govern- 
ment upon a general principle ; but in its terms it certainly 
presumed that government to be a monarchy. This fur- 
nished the judges upon the trial of Vane with a distinction 
of which they willingly availed themselves. They pro- 

1 Commons' .Tournals, 1st July, 1631. Dec. 4, on the motion of colonel Titu8, 

K division took place,*November 26, on to be disinterred and hanged on a gibbet. 

J motion to lay this bill aside, in consid- The lords concurred in this order; but 

^rationof the king's proclamation : which the mode of address to the kiiiR would 

\yi\s lost by 121 to 109: lord Cornbury have been more regular. Pari. Hist. 151 

'Clarendon's son) being a teller for the [These bodies had been previously re 

Nots. The bill was sent up to the lords moved from Westminster Abbey, and 

Jan. 27. 1662. S(;e al.so Pari. Hist. 217, '• cast together into a pit at tlie back door 

225. Some of their proceedings trespassed of the prebendaries' lodgings."' The body 

upon the executive power, and infringed of Blake was the same day, Sept. 12, 1660, 

the prerogative they labored to exalt, taken up and " buried in St. Margaret'H 

But long interruption of the due cour.^e of churchyard." It appears to have been 

the constitution had made its boundaries done by an order of the king to th« 

Indistinct. Thus, in the convention par- dea n of Westminster. Kenaet's Ilegister 

Unment, the bodies of Cromwell, Brad- p. 636.' 
«haw, IJeton, and others, were ordered 



90 VIOLATION OF CHARLES'S PROMISE. Chak XI 

ceeded, however, be^^ond all bounds of coiisfitutional prec- 
edents and of common sense when they determined lliat 
Charles II. had been king de facto as well as de jure from 
the moment of his father's death, though, in the words of 
their senseless sophistry, " kept out of the exercise of his 
royal authority by traitors and rebels." He had indeed as- 
sumed the title during his exile, and had gi-anted letters 
patent for different purposes, which it Avas thought proper to 
hold good after his restoration ; thus presenting the strange 
anomaly, and as it were contradiction in terms, of a king 
who began to govern in the twelfth year of his reign. l>ut 
tins had not been the usage of former times. Edwai'd IV., 
Richard III., Henry VII., had dated their instruments either 
from their proclamation or at least from some act of posses- 
sion. The question was not whether a right to the crown 
descended according to the laws of inheritance, but whether 
such a right, divested of possession, could challenge allegiance 
as a bounden duty by thelaw of England. This is expressly 
determined in the negative by lord Coke in his Third Insti- 
tute, who maintains a king " that hath right, and is out of 
possession," not to be within the statute of treasons. He 
asserts also that a pardon granted by him would be void ; 
which by parity of reasoning must extend to all his patents.-' 
We may consider, therefore, the execution of Vane as one 
of the most reprehensible actions of this bad reign. It not 
only violated the assurance of indemnity, but introduced a 
principle of sanguinary proscription, which would render the 
return of what is called legitimate government, under any 
circumstances, an intolerable curse to a nation.'^ 

The king violated his promise by the execution of Vane, 
as much as the judges strained the law by his conviction. 
He had assured the last parliament, in answer to tlieir ad- 
dress, that, if Vane and Lambert should be attainted by law, 
he would not suffer the sentence to be executed. Though 
the present parliament had urged the attorney-general to 
bring these delinquents to tnal, they had never, by an ad- 
dress to the king, given him a color for retracting his 
promise of mercy. It is worthy of notice that Clarendon 
does not say a syllable about Vane's ti'ial ; which affords a 

1 3 Inst. 7. This appears to have been 2 Foster, in his Discourse on High 

held in Bngot's case, 9 EJw. 4. See also Treason, evidnntly intimates that h* 

Higden's View of the English Constitu- thought the conviction of Vane uujuRti 

lion, 1709. fiable. 



Cha. II — lG6<)-73. CROWN'S PREROGATIVES RESTORED. 91 

strong presumption that he thought it a breach of the act of 
indemnity. But we have on record a remarkable letter of" 
the king to his mini.'^ter, wherein he expresses his resentment 
at Vane's bold demeanor during his trial, and intimates a 
wish for his death, though with some doubts whether it could 
be honorably done.^ Doubts of such a nature never lasted 
long with this prince ; and Vane suffered the week after. 
Lambert, whose submissive behavior had furnished a contrast 
with that of Vane, was sent to Guernsey, and remained a 
prisoner for thirty years. The royalists have spoken of 
Vane with extreme dislike ; yet it should be remembered 
that he was not only incorrupt, but disinterested, inflexible in 
conforming his public conduct to his principles, and averse to 
every sanguinary or oppressive measure ; qualities not very 
common in revolutionary chiefs, and which honorably dis- 
tinguished him from the Lamberts and Haslerigs of his 
party. ^ 

iS'o time was lost, as might be expected from the temper 
of the commons, in replacing the throne on its Acts re- 
constitutional basis after the rude encroa-jhments p''^<^'"S the , 

,. , , ,. rrii Till 1 crown in ' 

01 tne Jong parliament, ihey declared that there its prerog- • 
was no legislative power in either or both houses *'"'*8- 
without the king ; that the league and covenant was unlaw- 
fully imposed ; that the sole supreme command of the militia, 
and of all forces by sea and land, had ever been by the laws 
of England the undoubted right of the crown ; that neitb.er 
house of parliament could pretend to it, nor could lawfully 
levy any war offensive or defensive against his majesty.' 
These last words appeared to go to a dangerous length, and 
to sanction tlie suicidal doctrine of absolute non-resistance. 
They made the law of high-treason more strict during the 
king's life in pursuance of a precedent in the reign of Eliza- 

1 •' The relation that has been made to endon's hand, " The king, .Tune 7,10(52." 

me of sir II. Vane's carriage yesterday in Vane was beheaded .)ur;c 14. Burnet 

ILh Itill w the occu,^ion of this letter, (note in Oxfor.l edition), p. 164. Ilar- 

wbich, if I am rightly informed, was so ris's Lives, v. 32. 

ioboleut a.s to justiiy all he had done ; ac- - Vuue gave up the profits of his place 
knowledging no supreme power in Eng- as treasurer of the navy, which, accord- 
land but a parliament, and many things irjg to his patent, would have amounted 
to that purpcse. You have had a true to 30.000/. per annum, if we may rely on 
account of ail ; and if he has given new on Harris's Life of Cromwell, p. 260. 
occ;i.sion to be hanged, certainly he is too ^ 13 Car. 2, c. 1 & 6. A bill for set- 
dangerous a man to let hve. if we can tling the miiitia had been much oppo.sed 
honestly put him out of the way. Think in the convention parliament, as tending 
if this, and give me some account of it to bring in martial law. farl. llist. iv 
to-morrow ; till when, I have no more to 145. It seenie to have dropped 
«ay to you. C." Indorsed in lord Olar- 



92 CORPORATION ACT. Chap. Xi 

beth.* They restored the bishops to (heir seats in the house 
of lords ; a step which the last parliament would never have 
been induced to take, but which met with little opposition 
from the present.^ The violence that had attended their ex- 
clusion seemed a sufficient rcotive for rescinding a statute so 
improperly obtained, even if the policy of maintaining the 
spiritual peers were somewhat doubtful. The remembrance 
of those tumultuous assemblages which had overawed their 
predecessors in the winter of 1641, and at other times, pro- 
duced a law against disorderly petitions. This statute pro- 
vides that no petition or address shall be presented to the 
king or either house of parliament by more than ten persons; 
nor shall any one procure above twenty persons to consent 
or set their hands to any petition for alteration of matters 
established by law in church or state, unless with the pre- 
vious order of three justices of the county, or the major part 
of the grand jury.^ 

Thus far the new parliament might be said to have acted 
Corporation chiefly On a principle of repairing the breaches 
act. recently made in our constitution, and of rees- 

tablishing the just boundaries of the executive power ; nor 
would much objection have been offered to their measures, 
had they gone no farther in the same course. The act for 
regulating corporations is much more questionable, and dis- 
played a determination to exclude a considerable portion of 
the community from their civil rights. It enjoined all magis- 
trates and persons bearing offices of trust in corporations to 
swear that they believed it unlawful, on any pretence what- 
ever, to take arms against the king, and that they abhori-ed 
the traitorous position of bearing arras by his authority 
against his person, or against those that are commissioned by 
him. They were also to renounce all obligation arising out 
of the oath called the solemn league and covenant ; in case 
of refusal, to be immediately removed from office. Those 
elected in future were, in addition to the same oaths, to have 
received the sacrament within one year before their election 
according to the rites of the English church.* I These pro- 

> c. 1. 3 c. 5. 

2 C. 2. The only opposition made to * 13 Car. 2, sess. 2, c. 1. This bill did 

tills was in the house of lords by the earl not pa.sa without strong oppotition in 

of Bristol and some of tlie Roman catholic theccmmons. It was carried at last by 

party, who thought the bishops would 182 to 77; Journals, July 5; but on a 

not bo brought into a toleration of their previous division for its commitment the 

reli^OD Lil'e of Clarendon, p. 133. numbers were ISo to 136. June 20. 



Cha. n. — lGGO-73. XnE TRIENNIAL ACT. 93 

visions struck at the heart of the presbyterian party, whose 
strength lay in the httle oligarchies of corporate towns, which 
directly or indirectly returned to parliament a very large 
proportion of its members. Yet it rarely happens that a 
political faction is crushed by the terrors of an oath.^ Many 
of the more rigid presbyterians refused the conditions im- 
posed by this act ; but the majority found pretexts for quali- 
fying themselves. 

It could not yet be said that this loyal assembly had med- 
dled with those safeguards of i)ublic liberty which ^^^^^^ ^, 
had been erected by their great predecessors in the trien- 
1G41. The laws that Falkland and Hampden ""^ ''"'• _ 
bad combined to provide, those bulwarks against the ancient 
exorbitance of prerogative, stood unscathed ; threatened from 
afar, but not yet betrayed by the garrison. But one of these, 
the bill for triennial parliaments, wounded the pride of 
royalty, and gave scandal to its worshippers ; not so much 
on account of its object, as of the securities provided against 
its violation. K the king did not summon a fresh parliament 
within three years after a dissolution, the peers were to meet 
and issue writs of their own accord ; if they did not within a 
certain time perform this duty, the sheriffs of ever/ county 
were to take it on themselves; and, in default of all con- 
stituted authorities, the electors might assemble without any 
regular summons to choose representatives. It was manifest 
that the king must have taken a fixed resolution to trample 
on a fundamental law, before these irregular tumultuous 
modes of redress could be called into action; and that. the 
existence of such provisions could not in any degree weaken 
or endanger the legal and limited monarchy. But the doc- 
trine of passive obedience had now crept trom the homilies 
into the statute-book ; the parliament had not scrupled to de- 
clare the uulawfLdness of defensive war against the king's 
person ; and it was but one step more to take away all direct 
means of counteracting his pleasure. Bills were accordingly 
more than once ordered to be brought in for repealing the 
triennial act ; but no further steps were taken till the king 
thought it at length necessary in the year 1604 to give them 
an intimation of his desires.^ A vague notion had partially 

Prynne was afterwards reprimanded by submissive apology, though the censur« 

the speaktT for publishing a p;miphlet was proiiouuced iu a very harsh uiauuer. 

against this act, July 1,'); but his courage l .Journals, 3d April, 1662; 10th March 

tuid now forsaken him and he made a 1663. 



94 REPEAL OF THE TRIENNIAL ACT. Chap. XI 

gained ground that no parliament, by virtue of that bill, 
could sit for more than three years. In allusion to this, he 
told them, on opening the session of 1664, that he "had often 
read over that bill ; and, though there was no color for the 
fancy of the determination of the parliament, yet he would 
not deny that he had always expected them to consider the 
wonderful clauses in that bill, which passed in a time very 
uncareful for the dignity of the crown or the security of the 
people. He requested them to look again at it. For him- 
self, he loved parliaments ; he was much beholden to them ; 
he did not think the crown could ever be happy with- 
out frequent parliaments ; " but assure yourselves," he con- 
cluded, " if I should think otherwise, I would never suffer a 
parliament to come together by the means prescribed by that 
bill." 1 

So audacious a declaration, equivalent to an avowed de- 
sign, in certain cii'cumstances, of preventing the execution 
of the laws by force of arms, was never before heard from 
the lips of an English king ; and would in any other times 
have awakened a storm of indignation from the commons. 
They were, however, sufficiently compliant to pass a bill 
for the repeal of that which had been enacted with unani- 
mous consent in 1641, and had been hailed as the great 
palladium of constitutional monarchy. The preamble recites 
the said act to have been " in derogation of his majesty's 
just rights and prerogative inherent in the imperial crown 
of this realm for the calling and assembling of parliaments." 
The bill then repeals and annuls every clause and article in 
the fullest manner ; yet, with an inconsistency not unusual 
in our statutes, adds a provision that parliaments shall not 
in future be intermitted for above three j^ears at the most. 
This clause is evidently framed in a ditiei'ent spirit from the 
original bill, and may be attributed to the influence of that 
party in the house which had begun to oppose the court, and 
already showed itself in considerable strength.^ Thus the 
effect of this compromise was that the law of the long par- 
liament subsisted as to its principle, without those unusual 

1 Pari. Hist. 289. Clarendon speaks during the pas.sage of this bill, anj 

very unjustly of the triennial act, for- though, as far as appears, on subordinat* 

getting tliat he had himself concurred in points, yet probably springing from an 

it. P. 221. opposition to its principle, March 28, 

- 16 Car. II. c. 1. We find by the 1064. There was by this time a reguiai 

Journals that some divisions took place party formed against the court. 



Cha. II. — 1G60-73. CLARENDON'S PEmCffLES. 95 

clauses which had been enacted to render its obsei"vance 
secure. The king assured them, in giving Iiis assent to the 
repeal, that he would not be a day more without a parlia- 
ment on that account. But the necessity of those tecurities, 
and the mischiefs of that false and servile loyalty which ab- 
rogated them, became manifest at the close of the present 
reign; nearly four years having elapsed between thee disso- 
lution of Charles's last parliament and his death. 

Clarendon, the principal adviser, as yet, of the king sinco 
his restoration (for Southampton rather gave reputation to 
the administration than took that superior influence which 
belonged to his place of treasurer), has thought fit to stig- 
matize the triennial bill with the epithet of infamous. So 
wholly had he divested 'himself of the sentiments he enter- 
tained at the beginning of the long parliament, that he sought 
nothing more ardentl}- than to place the crown again in a 
condition to run into those abuses and excesses against which 
he had once so much inveighed. " He did never dissemble," 
he says, " from the time of his return with the king, that the 
late rebellion could never be extirpated and pulled up by 
the roots, till the king's regal and inherent power and pre- 
rogative should be fully avowed and vindicated, and till the 
usurpations in both houses of parliament, since the year 
1640, were disclaimed and made odious; and many other 
excesses, which had been affected by both before that time 
under the name of privileges, should be restrained or ex- 
plained. For all which x*eformation the kingdom in general 
was very well disposed, when it pleased God to I'estoi'e the 
king to it. The present parliament had done much, and 
would willingly have prosecuted the same method, if they 
had had the same advice and encouragement." ^ I can only 
understand these words to mean that they might have been 
led to repeal other statutes of the long parliament, besides 
the triennial act, and that excluding the bisho])S from the 
house of peers ; but, more especially, to restore the two 
great levers of prerogative, the courts of star-chamber and 
high-commission. Tliis would indeed have ])ulled up by the 
roots the work of the long parliament, which, in spite of 
such general reproach, still continued to .shackle the revived 
monarchy. There had been some serious attempts at this 
in the house of lords during the session of lGGl-2. \V« 
1 p. 383 



96 CnARACTERISTIC OF THE PARLIAMENT. Chap. XI 

read in the Journals ^ that a committee was appointed to 
prepare a bill for repealing all acts made in the parliament 
begun the 3d day of November, 1G40, and for reenacting 
such of them as should be thought fit. This committee 
some time after ^ reported their opinion, *' that it was lit for 
the good of the nation that there be a court of like nature 
to the late court called the star-chamber ; but desired the 
advice and directions of the house in these particulars fol- 
lowing: Wiio should be judges? What matters should they 
be judges of? By what manner of proceedings should thiy 
act ? " The house, it is added, thought it not fit to give 
Sbir-chamber finy particular directions therein, but left it to the 
•not restored, committee to proceed as they wuuld. It does not 
appear that anything farther was done in this session ; but 
we find the bill of repeal revived next year.® It is, how- 
ever, only once mentioned. Perhaps it may be questionable 
whether, even amidst the fervid loyalty of 1661, the house 
of commons would have concurred in reestablishing the star- 
chamber. They had taken marked precautions in passing 
an act for the restoration of ecclesiastical jurisdiction, that 
it should not be construed to restore the high-commission 
court, or to give validity to the canons of 1640, or to en- 
large in any manner the ancient authority of the church.^ 
A tribunal still more formidable and obnoxious would hardly 
have found favor with a body of men who, as their behavior 
shortly demonstrated, might rather be taxed with passion 
and vindicliveness towards a hostile faction, than a delib- 
erate willingness to abandon their English rights and priv- 
ileges. 

The striking characteristic of this parliament was a zeal- 
ous and intolerant attachment to the established church, not 
losing an atom of their aversion to popery in their abhor- 
x'ence of protestant dissent. In every former parliament 
since the Ketbrmation the country party (if I may use such 
a word, by anticipation, for those gentlemen of landed es- 
tates who owed their seats to their i)rovincial importance, 
as distinguished from courtiers, lawyers, and dependants on 
the nobility) had incurred with rigid churchmen the repro.-^ch 
of puritanical afiections. They were implacable aga'"^! 

1 lord's Journals, 23d and 24th Jan. s I9th March, 1663. 
1662. 4 13 Car. II, c. 12. 

2 12th Feb. 



Cha. II. — 1660-73. DECEIT OF THE KING. 97 

popery, but disposeJ to far more indulgence w'lih respect to 
non-conformity than the very different maxims of Elizabeth 
and her successors would permit. Yet it is obvious that the 
puritan commons of James I. and the liigh-church commons 
of Charles II. were composed, in a great measure, of the 
same families, and entirely of the same classes. But, as 
the arrogance of the prelates had excited indignation, and 
the su^erings of the scrupulous clergy begotten sympathy 
in one age, so the i-eversed scenes of the last twenty years 
had given to the former, or their adherents, the advantage 
of enduring oppression with humility and fortitude, and dis- 
played in the latter, or at least many of their number, those 
odious and malevolent qualities which adversity had either 
concealed or rendered less dangerous. The gentry, con- 
nected for the most pai*t by birth or education with the 
episcopal clergy, could not for an instant hesitate between 
the ancient establishment and one composed of men whose 
eloquence in preaching was chiefly directed towards the 
common people, and presupposed a degree of enthusiasm 
in the hearer which the higher classes rarely possessed. 
They dreaded the wilder sectaries, foes to property, or at 
least to its political influence, as much as to the regal con- 
stitution ; and not unnaturally, though without perfect fair- 
ness, confounded the presbyterian or moderate non-conformist 
in the motley crowd of fanatics, to many of whose tenets he 
at least more approximated than the church of England min- 
ister. 

There is every reason to presume, as I have already re- 
marked, that the king had no intention but to deceive the 
presbyterians and their friends in the convention ^.^^^^y, 
parliament by his declaration of October, IGGO.^ t«rmns 
He proceeded, after the dissolution of that assem- by^ttw 
bly to fill up the number of bi»hops, who had been ^iug. 
reduced to nine, but with no further mention of suffragans, 

I Cl;irenJon, in his Life, p. 149, saj-s Charles, as hi.s minister well knew, could 
that the king '' hiid recpived the presby- not read a common Latin book (('Wiren- 
teriun ministers with grace ; and did be- don State Papers, iii. 5(57), and had no 
Ueve that he should work upon them by manner of acquaintance with tlieological 
persuasions, having been well acquainted learning, unless the popular argument 
with their common arguments by the in favor of popery is so to be called; yet 
conversation he had had in Scotland, and he was very able to confute men who had 
was very able to confute them." This is passed their lives in study, on a subject 
one of the strange absurdities into which involving a considerable knowledije of 
Clarendon's prejudices hurry him in al- Scripture and the early writei-s iu Uieil 
most every page of his writings, and more original languages ! 
«8peciulty iu this continuation of his Life. 



98 SAVOY CONFERENCE. Chap. XI 

or of the council of presbyters, which had been announced 
in that dechxration.^ It does indeed appear highly probable 
that the scheme of Usher would have been found inconven- 
ient and even impracticable ; and reflecting men would 
perhaps be apt to say that the usage of primitive antiquity, 
upon which all parties laid so much stress, was rather a 
presumptive argument against the adoption of any system 
of church-government, in circumstances so widely different, 
than in favor of it. But inconvenient and impracticable- 
provisions carry with them their own remedy ; and the king 
might have respected his own word, and the wishes of a 
large part of the church, without any formidable danger to 
episcopal authority. It would have been, however, too fla- 
grant a breach of promise (and yet hardly greater than that 
just mentioned) if some show had not been made of desiring 
a reconciliation on the subordinate details of religious cere- 
Savoy coa- monies and the liturgy. This produced a confer- 
ference. g^ce ^gij ^t the Savoy, in May, 1661, between 
twenty-one Anglican and as many prcsbyterian divines : the 
latter were called upon to propose their objections : it being 
the i^art of the others to defend. They brought forward so 
long a list as seemed to raise little hope of agreement. Some 
of these objections to the service, as may be imagined, were 
rather captious and hypercritical ; yet in many cases they 
pointed out real defects. As to ceremonies, they dwelt on 
the same scruples as liad from the beginning of Elizabeth's 
reign produced so unhappy a discordance, and had become 
inveterate by so much persecution. The conference was 

1 Clarendon admits that this could not Blackburn, a non-conformist] did frive me 
have bceii done till the former parli.iiiient many stories of the affronts which the 
was dissolved : 97. This means, of course, clergy receive in all parts of England 
on the supposition that the king's word from the gentry and ordinary persons 
was to be broken. "The maliguity tow- of the parish." November S), 1G63. The 
ards the church," he says, " seemed in- opposite party bad recourse to the old 
creasing, and to be greater than at the weapons of pious fraud. I have a tract 
coming in of the king." Pepys, iu his coiitaii;iug twenty-seven instances of re- 
Diary, has Several sharp remarks on the markaule judgments, all between June, 
misconduct and unpopularity of the bish- 1660. and April, 1661, which befell divers 
ops, though himself an episcopalian even persons for reading the common prayer 
before the restoration. " The clergy are or reviliig godly ministers. This is en- 
BO high that all people I meet with do titled Annus .Mirabilis ; and, besides the 
protest against their practice." August above twenty-seven, attests so many 
SI, 1660. " I am convinced in my judg- prodigies, that the name is by no meana 
menc that the present clergy will never misapplied. The bishops made large for- 
heartily go down with the generality of tunes by filling up leases. Burnet, 260. 
the coumioiis of England ; they have been And Clarendon admits them to liave been 
80 used to liberty and freedom, and they too rapacious, thcugh he tries to exten- 
are so acquainted with the pride and de- tate. P. 48. 
bauchery of the present clergy. He (Mr. 



Cha. II. - lOGO-73. SAYOY CONFERENCE. 99 

manap:ed with great rnutual bitterness and recrimination ; 
the uue pany stimulated by vindictive hatred and tlie nat- 
ural arrojiance of power ; the otlier irritated by the manifest 
design of breaking the king's faith, and probaldy by a sense 
of tlieir own improvidence in ruining themselves by his res- 
toration. The chief blam.e, it cannot be dissembled, ought 
to tall on the churchmen. An opportunity was afforded of 
healing, in a very great measure, that schism and separation 
which, if they are to be believed, is one of the worst evils 
that can befall a Christian community. They had it in their 
power to retain, or to expel, a vast number of worthy and 
laborious ministers of the gospel, with whom they hat), in 
their own estimation, no essential ground of difference. They 
knew the king, and consequently themselves, to have been 
restored with (I might almost say by) the strenuous coop- 
eration of those very men who were now at their mercy. 
To judge by the rules of moral wisdom, or of the spirit of 
Christianity (to which, notwithstanding what might be sa- 
tirically said of experience,^ it is difficult not to think we 
have a right to expect that a body of ecclesiastics should 
pay some attention), there can be no justification for the 
Anglican party on this occasion. They have certainly one 
apology, the best very frequently that can be offered for 
human infirmity ; they had sustained a long and unjust ex- 
clusion from the emoluments of their profession, which begot 
a natural dislike towards the members of the sect that had 
profited at their expense, though not, in general, personally 
responsible for their misfortunes.^ 

1 The fullest account of this conference, serre to display the spirit vith which the 

Rnd of all that passe<l as to the compre- Anglicans came to the conference. Upon 

hensio'i of the Presbyterians, is to he read Baxter saying that their proeeedinga 

in Baxtnr, whom Neal has abridged, would alienate a great part of the 7ia- 

Some allowance must, of course, be made tion, Stearne, bishop of Carlisle, ob.'ierved 

for the re.«entinent of Baxter ; but his to his as.'ociates, '■ lie will not say king- 

known integrity makes it impossible to ^/on), lest he ^hould aclinowlcdgeakiug." 

discredit the main part of his narration. Baxter, p. S'-H. This was a very malig- 

Nor is it nece.ssary to rest on the evidence nant reflection on a man who was well 

of those who may be supposed to have known never to have been of the repub- 

the prejudices of dissenfer.s. For bishop lican party. Tt is true that Baxter seems 

Burnet admits that all the concern which to have thought, in 1659, that llichard 

Bcemed to employ the prelates' mirids was Cromwell would have served the turn 

not only to make no alteration on the better than Charles Stuart; and, as a 

Presbyterians' account, but to straiten presbyterian, he thought very rightly. 

the terms of conformity far more than See p. 207, and part iii. p. 71. But, 

before the war. Tho.se, however, who preaching before the parliament, April 

would see what can be said by writers 30, 1660, he said it was none of our dif. 

of high-church principles, may consult ferences whether we si ould be loyal t« 

Kennet's History of Charles II. "p. 2o2, or our king; on that all ivere agreed. P 

Collier, p. 878 One little aoecdote may 217. 



100 RESULTS OF SAVOY CONFERENCE. Ciiap. XI 

The Savoy conference broke up in anger, each party more 
exapperated and more irreconcilable than before. This in- 
deed has been the usual consequence of attempts to bring 
men to an understanding on religious differences by explana- 
tion or compromise. The public was apt to expect too much 
from these discussions ; unwilling to believe either that those 
who have a reputation for piety can be wanting in desire to 
find the truth, or that those who are esteemed for ability can 
miss it. And this expectation is heightened by the lan- 
guage rather too strongly held by moderate and peaceable di- 
vines, that little more is required than an understanding of 
each other's meaning, to unite conflicting sects in a common 
faith. But as it generally happens that the disputes of theo- 
logians, though far from being so important as they apoear to 
the narrow prejudices and heated passions of the combatants, 
are not wholly nominal, or capable of being reducr-d to a 
common form of words, the hopes of union and se*ilemenf 
vanish upon that closer inquiry Avhich conferences and schemes 
of agreement produce. And though this may seen rather 
applicable to speculative controversies than to such matters 
as were debated between the church and the pres^'yterians 
at the Savoy conference, and which are in their nature more 
capable of comi)romise than articles of doctrine, yet the con- 
sequence of exhibiting the incompatibility and r ciprocal 
alienation of the two parties in a clearer light was nearly the 
same. 

A determination having been taken to admit of ro exten- 
sive comprehension, it was debated by the govei'nment 
whether to make a few alterations in the liturgy, «^r to re- 
store the ancient service in every particular, 'llie former 
advice prevailed, though with no desire or expectfjion of 
conciliating any scrupulous persons by the amendments in- 
troduced,^ These were by no means numerous, and in some 

1 Life of Clarendon, 147. He observes legend of Bel and the Dragon, for no 

that the alterations made did not reduce other purpose than to show cop'empt of 

one of the opposite party to the obedience their scruples. The alterations may be 

of the church. Now, in the first place, seen in Kennet's Register, bS'o. The 

he could not know this ; and, in the next, most important was the restoration of a 

he conceals fi'om the reader that, on the rubric inserted in the communio'^ ser- 

whole matter, the changes made in the vice under Edward A'l., but left oat by 

liturgy were more likely to disgust than Elizabeth, declaring against an)' corporal 

to conciliate. Thus, the puritans having presence in the Lord's supper. This 

always objected to the number of saints' gave offence to some of those who had 

days, the bishops added a few more ; and adopted that opinion, especially the duke 

the former having given very plaufil': of York, and perhaps tended to rK)mplet« 

reasons against the apocryphal lessons in his alienation from the Anglican jhuroh- 

the daily service, the others inserted the Burnet, i. 183. 



Cha. II. — lGGO-73. EPISCOPAL ORDINATION. 101 

instances rather chosen in order to irritate and mock the 
opposite party than from any compliance with their preju- 
dices. It is indeed very probable, from the temper of the 
new parliament, that they would not have come into more 
tolerant and healing measures. When the act of Act of 
uniformity was brought into the house of lords, it u"'fo™"y- 
was found not only to festore all the ceremonies and other 
matters to which objection had been taken, but to contain 
fresh clauses more intolerable than the rest to the presbyte- 
rian clergy. One of these enacted that not only every 
beneficed minister, but fellow of a college, or even school- 
master, should declare his unfeigned assent and consent to 
all and everything contained in the book of common prayer.^ 
These words, however capable of being eluded and explained 
away, as such subscriptions always are, seemed to amount, in 
common use of language, to a complete approbation of an 
entire volume, such as a man of sense hardly gives to any 
book, and which, at a time when scrupulous persons were 
with great difficulty endeavoring to reconcile themselves to 
submission, placed a new stumbling-block in their way, which, 
without abandoning their integrity, they found it impossible 
to surmount. 

The temper of those who chiefly managed church affairs 
at this period displayed itself in another innovation tending 
to the same end. It had been not unusual from the very 
beginnings of our Reformation to admit ministers ordained 
in foreign protestant churches to benefices in PZngland. No 
reordination had ever been practised with respect to those 
who had received the imposition of hands in a regular church ; 
and hence it appears that the church of England, whatever 
tenets might latterly have been broached in controversy, did 
not consider the ordination of presbyters invalid. Though 
such ordinations as had tiken place during the late troubles, 
and by virtue of which a great part of the actual clergy 
were in possession, were evidently irregular, on the suppo- 
sition that the English episcopal church was then in exist- 
ence, yet, if the argument from such great convenience as 
men call necessity was to prevail, it was surely worth while 
to suffer them to pass without question for the present, en- 
acting provisions, if such were required, for the future. But 
this did not fall in with the passion and policy of the bishops, 

1 13 & 14 Car. II.. c. iv. § 3. 



102 EJECTION OF Chap. XI. 

who found a pretext for their worldly motives of action in 
the sii])posed divine right and necessity of episcopal succes- 
sion ; a theory naturally more agreeable to arrogant and 
dogmatical ecclesiastics than that of Cranmer, who saw no 
intrinsic difference between bishops and priests ; or of 
Hooker, who thought ecclesiastical superiorities, like civil, 
subject to variation : or of Stillingfleet, who had lately 
pointed out the impossibility of ascertaining with clearness 
the real constitution of the apostolical church from the incon- 
clusive testimonies that eitlier Scripture or antiquity fur- 
nishes. It was therefore enacted in the statute for uniform- 
ity that no person should hold any preferment in England 
without having received episcopal ordination. There seems 
to be little or no objection to this provision, if ordination be 
considered as a ceremony of admission into a particular so- 
ciety ; but, according to the theories which both parties had 
embraced in that age, it coiiferred a sort of mysterious indel- 
ible character, which rendered its repetition improper.^ 

The new act of uniformity succeeded to the utmost wishes 
. . of its promoters. It provided that every minister 

of non- should, bcforc the feast of St. Bartholomew, 1G62, 

c?e°/°™'^' publicly declare his assent and consent to every- 
tiiing contained in the book of common prayer, on 
pain of being ipso facto deprived of his benefice.^ Though 
even the long parliament had reserved a fifth of the profits 
to those who were rejected for refusing the covenant, no 

1 Life of Clarendon, 152. Burnet, 256. pointed for the former ejectment, when 
Morley. afterwards bishop of Winchsster, four times as many of the loyal clergy 
was enjs;;igeJ just before the restoration were deprived for fidelity to their sover- 
in negotiating with the presbyterians. eign." Southey's Hist, of the Church, 
They stuck out for the negative voice of ii. 467. Tliat the day was chosen in 
the council of presbyters and for the va- order to deprive the incumbent of a 
lidity of their ordinations. Clar. State whole year's titlies, Mr. Southey has 
Papers. 727. He had two schemes to get learned from Burnet; and it aggravates 
over the difficulty: one to pass them the cruelty of the proceeding — but 
over sub sileutio ; the other, a hypothet- where has he found his precedent? The 
ic.il reonlination, ou the supposition Anglican clergy were rejecti^d for refusiuji 
that something might have been wanting the covenant at no one definite period, 
before, as the church of Kome practises as, ou recollection, Mr. S. would bs 
about rebaptization. The former is a aware; nor can I find any one parlia- 
curinus expedient for those who pretend nientary ordinance in Husband's Col- 
to think presbyterian ordinations really lection that meutiuns St. Bartholomew's 
null. Id. 738. day. There wa,-^ a precedent indeed in 

2 The day fixed upon suggested a com- that case, which the government of 
parison which, though severe, was obvi- Charles did not choose to follow. One 
ous. A modern writer has observed on fifth of the income had been reserved foi 
this, •' They were careful not to i-emem- the dispossessed incumbents : but it is 
ber that the same day, and for the same said that they often did not get them 
reason, because the tithes were com- Kennet's Register, 392. 

monly due at Michaelmas, had been ap- 



CHA.n.— 1660-73. NOX-CONFOKMIST CLERGY. 103 

mercy could be obtained from the still greater bigotry of the 
present; and a motion to make that allowance to non-conform- 
ing ministers was lost by 94 to 87.^ The lords had sliown a 
more temperate spirit, and made several alterations of a con- 
ciliating nature. They objected to extending the subscrip- 
tion required by the act to school-masters. But the commons 
urged in a conference the force of education, which made it 
necessary to take care for the youth. The upper house even 
inserted a proviso, allowing the king to dispense with the 
surplice and the sign of the cross ; but the commons reso- 
lutely withstanding this and every other alteration, they were 
ail given up.^ Yet, next year, when it was found necessary 
to pass an act for the relief of those wdio had been prevented 
involuntarily from subscribing the declaration in due time, a 
clause was inti'oduced declaring that the assent and consent 
to the book of common prayer required by the said act should 
be understood only as to practice and obedience, and not 
otherwise. The duke of York and twelve lay peers pro- 
tested against this clause, as destructive to the church of 
England as now established ; and the commons vehemently 
objecting to it, the partisans of moderate counsels gave way 
as before.* When the day of St. Bartholomew came, about 
2000 persons resigned their preferments rather than stain 
their consciences by compliance — an act to which the more 
liberal Anglicans, after the bitterness of immediate passions 
had passed away, have accorded that praise which is due to 
heroic virtue in an enemy. It may justly be said that the 
episcopal clergy had set an example of similar magnanimity 
in refusing to take the covenant. Yet, as that was partly of 
a political nature, and those who Avere ejected for not taking 
it might hope to be restored through the success of the king's 
arms, I do not know that it was altogether so eminent an act 
of self-devotion as the presbyteriau clergy displayed on St. 
Bartholomew's day. Both of them afford striking contrasts 
to the pliancy of tlie English church in the greater que.-tion 
of the preceding century, and bear witness to a remarkable 
integrity and consistency of pi-inciple.^ 

1 Journals, April 26. This may per- Journals, 7th May, Is altogether rather 

haps have given ripc to a mistake we find curious. 

5n Neal, 624, that the act of uniformity 3 Lords' Journals, 25th and 27th July, 

only pa-ssed by 186 to 180. There was 1663. Ralph, 58. 

no division at all upon the bill except * Neal, 62-5-636. Baxter told Burnet, 

that I have mentioned. as the latter says, p. 185. that not abore 

''' The report of the conference, Lords' 300 would have rebigned had. the terma 
VOL. II. — (J. 8 



104 HOPES OF THE CATHOLICS. Chap. XI 

No one who has any sense of honesty and plain dealing 
can pretend tliat Charles did not violate the spirit of his dec- 
larations, botli that from Breda and that which he published 
in October, 16G0. It is idle to say that those declarations 
were subject to the decision of parliament, as if the crown 
had no sort of influence in that assembly, nor even any 
means of making its inclinations known. He had urged 
them to confirm the act of indemnity, wherein he thought hig 
honor and security concerned ; was it less easy to obtain, or 
at least to ask for, their concurrence in a comprehension or 
toleration of the presbyterian clergy ? Yet, after mocking 
those persons with pretended favor, and even offering bishop- 
rics to some of their number by way of purchasing their de- 
fection, the king made no effort to mitigate the provisions of 
the act of uniformity ; and Clarendon strenuously supported 
them through both houses of parliament.-' This behavior in 
the minister sprang from real bigotry and dislike of the pres- 
byterians ; But Charles was influenced by a very different 
motive, which had become the secret spring of all his policy. 
This requires to be fully explained. 

Charles, during his misfortunes, had made repeated prom- 
Hopes of ^^^'^ ^° ^^^® pope and the great catholic princes of 
the cath- relaxing the penal laws against his subjects of that 
" "^^^ religion — promises which he well knew to be the 

necessary condition of their assistance. And, though he 
never received any succor which could demand the perform- 
ance of these assurances, his desii'e to stand well with France 
and Spain, as well as a sense of what was really due to the 
English catholics, would have disposed him to grant every 
indulgence which the temper of his people should permit. 

of the king's declaration been adhered 2257 names. Kennet, howeyer (Register, 

to. The blame, he goes on, fell chiefly 807), notices great mistakes of Calamy 

on Sheldon. But Clarendon was charged in respect only to one diocese, that of 

with entertaining the presbyterians with Peterborough. _ Probably both in this 

good words, while he was giving way to collection and in that of Walker on the 

the bishops. See also p. 268. Baxter other side, as in all matyrologies there 

puts the number of the deprived at 1800 are abundant errors; but enough will 

or 2000. Life, 384. And it has generally remain to afford memorable examples of 

been reckoned aljout 2000; though Bur- conscientious suffering; and we cannot 

net says it has been much controverted, read without indignation Kennet's en- 

If indeed we can rely on Calamy 's ac- deavors, in the conclusiou of this volume, 

count of the ejected ministers, abridged to extenuate the praise of the deprived 

by Palmer, under the title of the Non- presbyterians by captious and unfair ar- 

conformist's Memorial, the number must guments. 

have been full 2400, including fellows of i See Clarendon's feeble attempt to 

colleges, though not in orders. Palmer vindicate the king from the charge o( 

aays that a manuscript catalogue gives bresich of faith, 167. 



CiiA. II. - 1G60-73. THEIR CONDUCT. 105 

The laws were highly severe, in some cases sanguinary ; they 
were enacted in very different times, from plausible motives 
of distrust, which it would be now both absurd and ungrate- 
ful to retain. The catholics had been the most strenuous of 
the late king's adherents, the greatest sufferers for their loy- 
alty. Out of about five hundred gentlemen who lost their 
lives in the royal cause, one third, it has been said, were of 
that religion.^ Their estates had been selected for confisca- 
tion when others had been admitted to compound. It is, how- 
ever, certain that after the conclusion of the war, and espe- 
cially during the usurpation of Cromwell, they declined in 
general to provoke a government which showed a good deal 
of connivance towards their religion, by keeping up any con- 
nection with the exiled family.^ They had, as was surely 
very natural, one paramount object in their political conduct, 
the enjoyment of religious liberty ; whatever debt of gratitude 
they might have owed to Charles I, had been amply paid ; 
and perhaps they might reflect that he never scrupled, in his 
various negotiations with the parliament, to acquiesce in any 
proscriptive measures suggested against popery. This appar- 
ent abandonment, however, of the royal interests excited the 
displeasure of Clarendon, which was increased by a tendency 
Borae of the catholics showed to unite with Lambert, who was 
understood to be privately of their religion, and by an in- 
trigue carried on in 1659, by the machinations of Bucking- 
ham with some priests, to set up the dul^e of York for the 
crown. But the king retained no resentment of the general 
conduct of this party ; and was desirous to give them a testi- 
mony of his confidence by mitigating the penal laws against 
their religion. Some steps were taken towards this by the 
house of lords in the session of 1661 ; and there seems little 
doubt that the statutes at least inflicting capital punishments 
would have been repealed without difficulty, if the catholics 
had not lost the favorable moment by some disunion among 
themselves, which the never-ceasing intrigues of the Jesuits 
contrived to produce.^ 

1 A list of these, published in 1660, post. We find a letter from him to Crom- 
contains more than 170 names. Neal, well in ItiStj (Thurloe, iv. 591), with great 
590. protestations of duty. 

2 Sir Kenelm Digby was supposed to 3 gee Lords' Journals, June and July, 
be deep in a scheme that the catholics, in 1661, or extracts from them in Ketinefg 
1649, should support the commonwealth Kegister, 469, &c., 620, &c., and 798, 
with all their power, in return for Uberty where are several other particulars wor- 
«f religion. Carte's Letters, i. 216, et thy of notice. Clarenlon, 143, explaioj 



lOG 



KING'S BIAS TO EOMANISTS. 



Chap. XI 



There can be no sort of doubt that the king's natural facil- 
Biasofthe 'ty, and exemption from all prejudice in favor of 
king towards established laws, would have led him to afford 
them. every indulgence that could be demanded to hia 

catholic subject?*, many of whom were his companions or his 
counsellors, without any propensity towards their religion. 
But it is morally certain that during the period of his banish- 
ment he had imbibed, as deeply and seriously as the charac- 
ter of his mind would permit, a persuasion that, if any scheme 
of Christianity were true, it could only be found in the bosom 
of an infallible church ; though he was never reconciled, ac- 
cording to the formal profession which she exacts, till the last 
hours of his life. The secret, however, of his inclinations, 
though disguised to the world by the appearance, and prob- 
ably sometimes more than the appearance, of carelessness 
and infidelity, could not be wholly concealed from his court. 
It appears the most natural mode of accounting for the sud- 
den conversion of the earl of Bristol to popery, which is 
generally agreed to have been insincere. An ambitious in- 
triguer, holding the post of secretary of state, would not have 
ventured such a step without some grounds of confidence in 
his master's wishes ; though his characteristic precipitancy 
hurried him forward to destroy his own hopes. Nor are there 
wanting proofs that the protestantism of both the brothers 
was greatly suspected in England before the Restoration.* 
These suspicions acquired strength alter the king's return, 
thi'ough his manifest intention not to marry a pi'otestant ; and 
still more through the presumptuous demeanor of the oppo- 



the failure of this attempt at a partial 
toleration ( for it was only meant as to 
the exercise of religious rites in private 
houses) by the persevering opposition of 
the Jesuits to the oath of alh>i;iance, to 
which the lay catholics, and generally the 
secular priests, had long ceased to make 
objection. The house had voted tliat the 
indulgence should not extend to .Jesuits, 
and that they would not alter the oaths 
of allegiance or supremacj'. The Jesu- 
its complained of the distinction taken 
against them ; and asserted, in a printed 
tract (Keunet, ubi supri), that since* 1016 
they had been inhibited by their supe- 
riors from maiiitaining the pope's right 
to depose sovereigns. See also Butler's 
Mem. of Catholics, ii. 27. iv. 142; and 
Burnet, i. 194. 

1 The suspicions against Charles were 
eery strong in k^ igland before the resto- 



ration, so as to alarm his emissaries : 
" Your master," Mordaunt writes to Or- 
moud, Nov. 10, 1659, " is utterly ruineil 
as to liis interest here in whatever party, 
if this be true." Carte's Letters, ii. 264, 
and Clar. State Papers, iii. 602. But an 
anecdote related in Carte's Life of Or 
mond, ii. 255, and Harris's Lives, v. 54, 
which has obtained some credit, proves, 
if true, that he bad embraced the Koman 
catholic religion as early a-s 1059, so as 
even to attend mass. This cannot bo 
reckoned out of question ; but the ten- 
dency of the king's mind before his re- 
turn to England is to be inferred Irom 
all his behavior. Kennet (Complete Hist, 
of England, iii. 237) plainly insinuates 
that the project for restoring popery be- 
gan at the treaty of the Pyrenees ; and 
see his Register, p. 853. 



Cba. II. — lGCO-73. HIS INDIRECT POLICY. 107 

Bite party, which seemed to imhcate some surer grounds of 
contidence than were yet manifest. The new parhament in 
its first session had made it penal to say that tlie king was a 
papist or popislily aflfected ; whence the prevalence of that 
scandal may be inferred.^ 

Charles had no assistance to expect, in his scheme of 
granting a fidl toleration to the Roman faith, from 
his chief adviser Clarendon. A repeal of the ciarendoa^ 
sanguinary laws, a reasonable connivance, perhaps and the 
in some cases a dispensation — to these favors he 
would have acceded. But in his creed of policy the legal 
allowance of any but the established religion was inconsis- 
tent with public order, and with the king's ecclesiastical 
prerogative. This was also a fixed principle with the par- 
liament, whose implacable resentment towards the secretaries 
had not inclined them to abate in the least of their abhor- 
rence and apprehension of popery. The church of Eng- 
land, distinctly and exclusively, was their rallying-point ; the 
crown itself stood only second in their affections. The king, 
therefore, had recourse to a more subtle and indirect policy. 
If the terms of conformity had been so far relaxed as to 
suffer the continuance of the presbyterian clergy in their 
benefices, there was every reason to expect, from their known 
disposition, a determined hostility to all appi'oaches towards 
popery, and even to its toleration. It was therefoz-e the 
policy of those who had the interests of that cause at heart 
to permit no deviation from the act of uniformity, to resist all 
endeavors at a comprehension of dissenters within the pale 
of the church, and to make them look up to the king for 
indulgence in their separate way of worship. They were to 
be taught that, amenable to the same laws as the Romanists, 
exposed to the oppression of the same enemies, they must act 
in concert for a common benefit.^ The presbyterian minis- 
ters, disheartened at the violence of the parliament, had 
recourse to Charles, whose affability and fair promises they 
were loath to distrust, and implored his dispensation for their 
non-conformity. The king, naturally irresolute, and doubtless 
sensible that he had made a bad return to those who had 
contributed so much towards his restoration, was induced, at 
the strong solicitation of lord Manchester, to promise that he 
would issue a declaration suspending the execution of the 

1 13 Car. 2, c. 1. 2 Burnet, i. 179. 



lOH DECLARATION FOK INDULGENCE. Ch.vp- XL 

statute for three montlis. Clarendon, though he had been 
averse to some of the rigorous clauses inserted in the act of 
uniformity, was of ojjinion that, once passed, it ought to be 
enforced without any connivance ; and told the king, likewise, 
that it was not in his power to preserve those who did not 
comply with it from deprivation. Yet, as the king's word 
had been given, he advised him rather to issue such a decla- 
ration than to break his promise. But, the bishops vehe- 
mently remonstrating against it, and intimatmg that they 
would not be parties to a violation of the law by refusing to 
institute a clerk presented by the patron on an avoidance for 
want of conformity in the incumbent, the king gave way, and 
resolved to make no kind of concession. It is remarkable 
that the noble historian does not seem struck at the enormous 
and unconstitutional prerogative which a proclamation sus- 
pending the statute would have assumed.^ 

Instead of this very objectionable measure the king adopted 
„ , ,. one less arbitrary, and more consonant to his own 
for indui- Secret policy. He published a declaration in favor 
gence. ^f liberty of conscience, for which no provision 

had been made, so as to redeem the promises he had held 
forth at his accession. Adverting to these, he declared that, 
" as in the first place he had been zealous to settle the uni- 
formity of the church of England in discipline, ceremony, 
and government, and should ever constantly maintain it, so, 
as for what concex'ns the penalties upon those who, living 
peaceably, do not conform themselves thereto, he should 
make it his special care, so far as in him lay without invading 
the freedom of parliament, to incline their wisdom next 
approaching sessions to concur with him in making soma 
such act for that purpose as may enable him to exercise with 
a more universal satisfaction that power of dispensing which 
he conceived to be inherent in him." ^ 

The aim of this declaration was to obtain from parliament 
a mitigation at least of all penal statutes in matters of religion 
but moi'e to serve the interests of catholic than of protestaat 
non-conformity.^ Except, however, the allusion to the dis- 

1 Life of Clarendon, 159. He intimates s Baxter intimates, 429, that some dis- 
that this begot a coldness in the bishops agreement arose between the presbyter 
toward himself, which was never fuUy re- rians and independents as to the tolera. 
moved. Yet he had no reason to com- tion of popery, or rather, as he puts it, 
plain of them on his trial. See, too, as to fhe active concurrence of the prot- 
Pepys's Diary, Sept. 3, 1662. estant dissenters in accepting such a tol- 

2 Pari. Hist. 257. eration as should include popery. Thelat 



Cha. II.— 1660-73. OPPOSED BY COMMONS. 109 

pensing power, whicli yet is very moderately alleged, there 
was nothing in it, according to our present opinions, that 
should have created offence. But the commons, q^. ^. , 
on their meeting in February, 1663, presented an to by the 
address denying that any obligation lay on the '=°™'"°'"- 
king by virtue of his declaration from Breda, which must be 
understood to depend on the advice of parliament, and 
slightly intimating that he possessed no such dispensing pre- 
rogative as was suggested. They strongly objected to the 
whole scheme of indulgence, as the means of increasing 
sectaries, and rather likely to occasion disturbance than to 
promote peace.^ They remonstrated, in another address, 
against the release of Calamy, an eminent dissenter, who, 
having been imprisoned for transgressing the act of uniform- 
ity, was irregularly set at liberty by the king's personal 
order.^ The king, undeceived as to the disposition of this 
loyal as.-embly to concur in his projects of religious liberty, 
was driven to more tedious and indirect courses in order to 
compass his end. He had the mortification of finding that 
the house of commons had imbibed, partly perhaps in con- 
sequence of this declaration, that jealous apprehension of 
popery which had caused so much of his father's ill-fortune. 
On this topic the watchfulness of an English parliament 
could never be long at rest. The notorious insolence of the 
Romish priests, who, proud of the court's favor, disdained to 
respect the laws enough to disguise themselves, provoked an 
address to the king that they might be sent out of the king- 
dom ; and bills were brought in to prevent the further growth 
of popery." 

ter, conformably to their general princi- from the king, and that the opposition to 

pies, were favorable to it ; but the former it in the house was chiefly made by the 

would uot make themselves parties to friends of Clarendon. The latter tells 

any relaxation of the penal laws against us in his Life, 189, that the kins "as dis- 

the church of Home, leaving the king pleased at the insolence of the Romish 

to act a-s he thought fit. By this stiff- party, and gave the judges general orders 

ness it Is very probable that they pro- to convict recusants. The minister and 

voked a good deal of persecution from historian either was or pretended to be 

the court, which they might have avoid- his master's dupe; and, if he had any 

ed by falling into its views of a general suspicions of what was meant as to relig- 

indulgence. ion (as he must surely have had), is far 

1 Pari. Hist. 260. An adjournment too loyal to hint them. Yet the one cir- 
had been moved and lost by ICl to 119. cumstance he mentions soon after, that 
Journals, 2oth Feb. the countess of Castlemaino suddenly de- 

2 19 B'eb. Baxter, p. 429. Glared herself a catholic, was enough to 

3 Journals, 17th and 28th March, 16o3. open his eyes and those of the world. 
Pari. Hist. 264. Burnet, 274, says the The Komish partisans assumed the ton* 
declaration of indulgence was usually a,s- of high loyalty, as exclusively eharao 
cribed to Bristol, but in fact proceeded teristic of theii relicion; but affected. 



110 ACT AGAINST CONVENTICLES. Chai. XL 

Meanwhile, the same remedy, so infallible in the eyes of 
legislators, was not forgotten to be applied to the opposite 
disease of prottstant dissent. Some had believed, of whom 
Clarendon seems to have been, that, all scruples of tender 
conscience in the presbyterian clergy being faction and hy- 
pocrisy, they would submit very quietly to the law, when 
they found all their clamor unavailing to obtain a dispensa- 
tion from it. The resignation of 2000 beneficed ministers at 
once, instead of extorting praise, rather inflamed the resent- 
ment of their bigoted enemies ; especially when they per- 
ceived that a public and perpetual toleration of separate 
worship was favored by part of the court. Rumors of con- 
spiracy and insurrection, sometimes false, but gaining credit 
from the notorious discontent both of the old commonwealth's 
party, and of many who had never been on that side, w^ere 
sedulously propagated, in order to keep up the animosity of 
Act against parliament against the ejected clergy ; ^ and these 
conventicles, g^e recited as the pretext of an act passed in 
1664, for suppressing seditious conventicles (the epithet 
being in this place wantonly and unjustly insulting), wliich 
inflicted on all persons above the age of sixteen, present at 
any religious meeting in other manner than is allowed by 
the practice of the church of England, where five or more 
persons besides the household should be present, a penalty 
of three months' imprisonment for the first offence, of six 
for the second, and of seven years' transportation for the 
third, on conviction before a single justice of peace.^ This 

at this time, to use great civility towards the duke of Orniond, where he says — 

the church of Enirland. A book, entitled " The country was in greater readiness to 

Philanax Anglicus, published under the prevent the disorders than perhaps were 

name of Bellamy, the second edition of to be wislied ; but it being the effect of 

which is in 1663, after a most flattering their own care, rather than his majesty's 

dedication to Sheldon, launches into viru- commands, it is the less to be censured.' 

lent abuse of the presbyterians and of the Clarendon, 218, speaks of this as an im 

reformation in general, as founded on portant and extensive conspiracy ; and 

principles adverse to monarchy. This, the king dwelt on it in his next speech to 

indeed, was common with the ultra or the parliament. Pari. Hist. 289. 

high-church party ; but the work in ques- 2 16 Car II. c. 4. A similar bill had 

tion, though it purports to be written passed the commons in July, 1663, but 

by a clergyman, is manifestly a shall hung some time in the upper house, and 

from the concealed bow of the Roman was much debated; the commons sent 

Apollo. up a message (an irregular practice of 

1 See proofs of this in Ralph, 53. Ra- those times) to request their lordships 

pin, p. 78. There was in 1663 a trifling would expedite this and some other bills. 

insurrection in Yorkshire, which the The king seems to have been displeased 

government wished to have been more at this delay ; for he told them at tlieir 

serious, .so as to afford a better pretext prorogation that he had expected some 

for strong measures ; as may be collected bills .against conventicles and distempers 

from a passage in a letter of Bennet to in religion, as well as the growth of 



CHA. II. -lGGO-7.3 ANOTHER RESTRICTIVE ACT. Ill 

act, says Clarendon, if it had been vigorously executed, would 
no doubt have pi-oduced a thorough refonnation.^ Sjch is 
ever the language of the supporters of tyranny ; when op- 
pi'ession does not succeed, it is because there has been too 
little of it. But those who suffered under this statute report 
very differently as to its vigorous execution. The jails Avere 
filled, not only with ministers who had borne the brunt of 
former persecutions, but with the laity who attended them ; 
and the hardshii) was the more grievous, that, the act being 
ambiguously worded, its construction was left to a single 
magistrate, generally very adverse to the accused. 

It is the natural consequence of restrictive laws to aggra- 
vate the disaffection which has served as their Another of 
pretext ; and thus to create a necessity for a legis- the same 
lature that will not retrace its steps to pass still 
onward in the course of severity. In the next session ac- 
cordingly, held at Oxford in 1GG5, on account of the plague 
that ravaged the capital, we find a new and more inevitable 
blow aimed at the fallen church of Calvin. It was enacted 
that all persons in holy orders, who had not subscribed the 
act of uniformity, should swear that it is not lawful, upon 
any pretence whatsoever, to take arms against the king ; and 
that they did abhor that traitorous position of taking arms 
by his authority against his person, or against those that are 
commissioned by him, and would not at any time endeavor 
any alteration of government in church or state. Those 
who refused this oath were not only made incapable of 
teaching in schools, but prohibited from coming within five 
miles of any city, corporate town, or borough sending mem- 
bers to parliament.^ 

This persecuting statute did not pass without the opposi- 
tion of the earl of Southampton, lord treasurer, Remarks 
and other peers. But archbishop Sheldon, and °° ^^'"^• 
several bishops, strongly supported the bill, which had un- 
doubtedly the sanction also of Clarendon's authority.* In 
the commons I do not find that any division took place ; but 
an unsuccessful attempt was made to insert the word " le« 
gaily " before commissioned ; the lawyers, however, declared 

popery, and should himself present aomjB principles Of the English crnstitutioa: 

at their next meeting. Pari. Hist. 288. 285. 

Burnet observes, that to empower a jus- ' P. 221. ^ 17 Car. 2, c. 2. 

tice of peace to convict without a jury 3 Burnet. Baxter, pare iii. p. 2. SeaJ. 

<ras thought a great breach on the p. 652. 



112 MOTIVES OF TOLERATION. Chap. XI 

that this word must be understood.^ Some of the non-con- 
forming clergy took the oath upon this construction. But 
the far greater number refused. Even if they could have 
borne the solemn assertion of the principles of passive obe- 
dience in all 2^ossible cases, their scrujDulous consciences 
revolted from a pledge to endeavor at no kind of alteration 
in church and state ; an engagement, in its extended sen'^e, 
irreconcilable with their own principles in religion, and with 
the civil duties of Englishmen. Yet to quit the town where 
they had long been connected, and where alone they had 
friends and disciples, for a residence in country villages, was 
an exclusion from the ordinary means of subsistence. The 
church of England had doubtless her provocations ; but she 
made the retaliation much more than commensurate to the 
injury. No severity, comparable to this cold-blooded perse- 
cution, had been inflicted by the late powers, even in the 
ferment and fury of a civil war. Encouraged by this easy 
triumph, the violent party in the house of commons thought 
it a good opportunity to give the same test a more sweeping 
application. A bill was brought in imposing this oath upon 
the whole nation ; that is, I presume (for I do not know that 
its precise natux-e is anywhere explained), on all persons in 
aay public or municipal trust. This, however, was lost on a 
division by a small majority.^ 

It has been remarked that there is no other instance in 
history, where men have suffered persecution on account of 
differences which were admitted by those who inflicted it to 
be of such small moment. But, supposing this to be true, 
i't only proves, what may perhaps be alleged as a sort of 
•istenuation of these severe laws against non-confoi-mists, that 
^hey were merely political, and did not spring from any theo- 
logical bigotry. Sheldon, indeed, their great promoter, was 
so free from an intolerant zeal that he is represented as a 
man who considered religion chiefly as an engine of policy 
The principles of religious toleration had already gained con- 
siderable gi'ound over mere bigotry ; but were still obnoxious 
to the arbitrary temper of some politicians, and wanted per- 

1 Burnet. Baxter. by three votes, and mentions the persons. 

3 Mr. Locke, in the "Letter from a But the numbers in the Journals, Octo- 

Person of Quality to his Friend in the ber 27, 1665, appear to be 57 to 51. 

Country," printed in 1675 (see it in his Probably he meant that those persona 

Works, or in Parliamentary History, vol. might have been expected to vote tli« 

It. Appendix, No. 5), says it was lost other wav. 



CHA.n. — 1660-73. DISSATISFACTION INCREASES. 113 

haps experimental proof of their safety to recommend them 
to the caution of others. There can be no doubt that all 
laws against dissent and separation from an established 
church, those even of the inquisition, have proceeded in a 
gi'eater or less degree from political motives ; and these ap- 
pear to me far less odious than the disinterested rancor of 
superstition. The latter is very common among the popu- 
lace, and sometimes among the clergy. Thus the presby- 
terians exclaimed against the toleration of popery, not as 
dangerous to the protestant establishment, but as a sinful 
compromise with idolatry ; language which, after the first 
heat of the Reformation had abated, was never so current 
in the Anglican church.^ In the case of these statutes 
against non-conformists under Charles II., revenge and fear 
seem to have been the unmixed passions that excited the 
church party against those whose former superiority they 
remembered, and whose disaffection and hostility it was im- 
possible to doubt.^ 

A joy so excessive and indiscriminating had «accompanied 
the king's restoration, that no prudence or virtue jjiggg^tjg. 
in his government could have averted that reac- faction 
tion of popular sentiment which inevitably follows *°<=^^^®^- 
the disappointment of unreasonable hope. Those who lay 
their account upon blessings which no course of political 
administration can bestow, live, according to the poet's com- 

1 A pamphlet, with Baxter's name sub- tion to the degree, quality, and ability 
scribed, called Fair Warning, or XXV of the delinquent; that so the penalty 
Reasons against Toleration and Indul- may be of force sufficient to conquer the 
gence of Popery, 1663, is a pleasant speci- obstioacy of the non-conformists." Wil- 
men of tliis argumentum ab inferno kins's Concilia, iv. 580. Letters from 
" Being there is but one safe way to sal- Sheldon to the commis.sary of the diocese 
ration, do you think that the protestant of Canterbury, in 1669 and 1670, occur 
way is that way, or is it not? If it be in the same collection, pp. 588, 589, 
not, why do you live in it ? If it be, directing him to inquire about conyen- 
how can you find in your heart to give tides ; and if they cannot be restrained 
your subjects liberty to go another way? by ecclesiastical authority, to apply to 
Can you, iu your conscience, give them the next justice of the peace in order to 
leave to go on in that course in which, in put them down. A proclamation appears 
your conscience, you think you could not also from the king, enjoining ui.igi.^trates 
be saved?" Baxter, however, does not to do this. In 1673 the archbishop writes 
mention this little book in his Life ; nor a circular to his suffragans, directing 
does he there speak violently about the them to proceed against such as keep 
tobration of Romanists. schools without license. P. 593. 

2 The clergy had petitioned the house See in the Somors Tracts, vii. 586, a 
of commons in 1664, inter alia, " That " true and faithful narrative " of the 
for the better observation of the Lord's severities practised against non-conform- 
day,and for the promoting of conformity, ists about this time. Baxter's Life is also 
you would be pleased to advance the full of proofs of persecution; but the 
pecuniary mulct of twelve pence lor each most complete register is in Calamy'a ao- 
ftbeence from diviae service, in proper- count of the ejected clergy- 



114 mCRK4.SE OF DISCONTENT. Chap. XI. 

pai'ison, like the sick man, perpetually changing posture in 
search of tlie rest which nature denies ; the dupes of suc- 
cessive revolutions, sanguine as children in all the novelties 
of politics, a new con?!itunon, a new sovereign, a new min- 
ister, and as angry with the playthings when they fall short 
of their desires. What then was the discontent tliat must 
have ensued upon the restoration of Charles II. ? The neg 
lected cavalier, the persecuted presbytex'ian, the disbanded 
otficer, had each his grievance ; and felt that he was either 
in a worse situation than he had formerly been, or at least 
than he had expected to be. Though thei'e were not the 
violent acts of military power which had struck every man's 
eyes under Cromwell, it cannot be said that personal liberty 
was secure, or that the magistrates had not considerable 
power of oppression, and that pretty unsparingly exercised 
towards those suspected of disaffection. The religious per- 
secution was not only far more severe than it was ever 
during the commonwealth, but perhaps more extensively felt 
than under Charles I. Though the monthly assessments for 
the support of the army ceased soon after the restoration, sev- 
eral large grants were made by parliament, especially during 
the Dutch war; and it appears that in the first seven years 
of Charles II. the nation paid a far greater sum in taxes 
than in imj preceding period of the same duration.^ If then 
the people compared the national fruits of their expenditure, 
what a contrast they found, how deplorable a faUing oif in 
public honor and dignity since the days of the magnanimous 
usurper ! ^ They saw with indignation that Dunkirk, ac- 
quired by Ci'omwell, had been chaffered away by Charles 
(a transaction justifiable perhaps on the mere balance of 
profit and loss, but certainly derogatory to the pride of a 
great nation) ; that a war, needlessly commenced, had been 
carried on with much display of bravery in our seamen and 
their commanders, but no sort of good conduct in the gov- 
ernment ; and that a petty northern potentate, who would 

1 [Bishop Parker, certainly no enemy us, in raising money ; " the nation's ex- 

totiie administration of Charles II., owns treme necessity makes us exceedingly 

that nothing did the king so much harm tender whereupon to fasten our resolu- 

as the immense grant of 2,500,000^ in tions." Marvell's Letters (in his Works), 

1674, to be levied in three years; from Nov. 6. — 1845.] 

which time he thought that he should 2 Pepys observes, 12th July, 1667, 

never want money, and put no restraint " how everybody now-a-days reflect upon 

on his expenses. Hist, of his own Time, Ohver and commend him, what brave 

p. 245. In the session of 1666 great things he did, and made all the neighbor 

difficulties were found, as Marvell teUa princes fear him." 



Cha. II.— 16G0-73. KING'S PRIVATE LIFE. 115 

have trenbled at the name of the commonwealth, had broken 
his faith ♦o wards us out of mere contempt of our ineffi- 
ciency.-' 

These discontents were heightened bj the private conduct 
of Charles, if the Hfe of a king can in any sense private life 
be private, by a dissoluteness and contempt of ofti»eking. 
moral opinion, which a nation, still in the main grave and 
religious, could not endure. The austere character of the 
last king had repressed to a considerable degree the common 
vices of a court which had gone to a scandalous excess un- 
der James. But the cavaliers in general affected a profli- 
gacy of manners, as their distinction from the fanatical party 
which gained ground among those who followed the king's 
fortunes in exile, and became more flagrant after the restora- 
tion.- Anecdotes of court excesses, which required not the 
aid of exaggeration, were in daily circulation thi'ough the 
coffee-houses ; those who cared least about the vice not fail- 
ing to inveigh against the scandal. It is in the nature of a 
limited monarchy that men should censure very freely the 
private lives of their princes, as being more exempt from 
that immoral servility which blinds itself to the distinctions 
of right and wrong in elevated rank. And as a voluptuous 
court will always appear prodigal, because all expense in vice 
is needless, they had the mortification of believing that the 
public revenues wei-e wasted on the vilest associates of the 
king's debauchery. We are, however, much indebted to the 
memory of Barbara duchess of Cleveland, Louisa duchess 
of Portsmoutli, and Mrs. Eleanor Gwyn. We owe a tribute 

1 [Clarendon, while he admits these Introduction, p. 73. On the other hand, 

discontents, and complaints of the decay sir Josj.ih Child asserts that there were 

of trade, asserts them to be unfounded, more men on change worth 10,000i. in 

No estate could be put up to sale anj-- 1680 than there were in 1660 worth 1000?., 

where but a purcha-scr was found for it : and that a hundred coaches were kept for 

vol. ii. p. 364. The main question, how- one formerly. Lands yielded twenty 

ever, is at what rate he would purchase, years' purchase which, when he was 

Kents, he owns, had suddenly fallen 25 young, were not worth above eight or 

per cent., which caused a clamor against ten. See Macphersou's Annals of Com 

taxes, presumed to be the cause of it. merce, ad ad. 1660. — 1845.] 
But the truth is that wheat, which had 2 [Life of Clarendon, p. 31. Perhaps 

been at a very high price for a few years he lays too much the blame of this on 

just before and after the restoration, fell the sectaries; yet we may suspect that 

about 1603 ; and there is no doubt that the enthusiastic and antinomian conceits 

the reign of Charles II. was not favor- of these men had relaxed the old bonds 

able to the landed interest. Lady Sunder- of morality, and paved the ^vay for the 

land tells us, in a letter of 1681, that more glaring licentiousne.'is of the resto- 

" the manor of Worme-Leighton, which, ration. See, too, I'epys'S Diary, Aug. 31; 

when I wa.s married [16ti2], was let for 1660, for the rapid increase of dissolute 

8200/., is now let for 2300^" Sidney's ness about the court. — 1845.] 
Diary, edited by Blencowe, 1843, vol. i 



116 OPPOSITION IN PARLIAMENT. Chap. XL 

of gratitude to the Mays, the KiUigrews, the Chiffinches, and 
the Grammonts. They played a serviceable part in ridding 
tlie kingdom of its besotted loyalty. They saved our fore- 
fathers from the star-chamber and the high-commission court; 
they labored in their vocation against standing armies and 
corruption ; they pressed forward the great ultimate security 
of English freedom, the expulsion of the house of Stuart.^ 

Among the ardent loyalists who formed the bulk of the 
o^ition present parliament, a certain number of a differ- 
ia parUa- cnt class had been returned, not sufficient of them- 
'"®"'" selves to constitute a very effective minority, but 

of considerable importance as a nucleus, round which the 
lesser factions that circumstances should produce might be 
gathered. Long sessions, and a long continuance of the same 
parliament, have an inevitable tendency to generate a sys- 
tematic opposition to the measures of the crown, which it 
requires all vigilance and management to hinder from be- 
coming too powerful. The sense of personal importance, 
the desire of occupation in business (a very characteristic 
propensity of the English gentry), the various inducements 
of private passion and interest, bring forward so many active 
spirits, that it was, even in that age, as reasonable to expect 
that the ocean should always be tranquil as that a house of 
commons should continue long to do the king's bidding with 
any kind of unanimity or submission. Nothing can more 
demonstrate the incompatibility of the tory system, which 
would place the virtual and effective, as well as nominal, 
administration of the executive government in the sole hands 
of the crown, with the existence of a representative assem- 
bly, than the history of this long parliament of Charles 11.^ 

' The Memoires de Grammont are (such, sometimes, as we might otherwise 
known to everybody, and are almost almost blush to peruse) we have before 
iinique in their kind, not only for the us the handwriting on the wall, the win- 
grace of their style and the vivacity of ter whirlwind hushed in its grim repose 
their pictures, but for the happy igno- and expecting its prey, the vengeance of 
ranee in which the author seems to have an oppressed people and long-forbearing 
lived that any one of his readers could Deity. No such retribution fell on the 
imagine that there are such things as courtiers of Charles II., but they earned 
virtue and principle in the world. In In their own age, what has descended to 
the delirium of thoughtless voluptuous- posterity, though possibly very indifferent 
ness they resemble some of the memoirs to themselves, the disgust and aversion 
about the end of Louis XV. 's reign, and of all that was respectable among man- 
somewhat later ; though, I think, even in kind. 

these there is generally some effort, here 2 [Aubrey relates a saying of Harring- 

and there, at moral censure, or some ton, just before the restoration, which 

affectation of sensibility. They, indeed, shows his sagacity. " Well !_ the king 

have always an awful moral ; and in the will come in. Let him come in and call 

light portraits of the court of Versailles a parliament of the greatest cavaliers in 



Cha. II. — 1660-73. APPROPRIATION OF SUPPLIES. 117 

None has ever been elected in circumstances so favorable for 
the crown, none ever brought with it such high notions of 
prerogative ; yet in this assembly a party soon grew up, and 
gained strength in every successive year, which the king could 
neither direct nor subdue. The methods of bribery, to which 
the court had largely recourse, though they certainly diverted 
some of the measures, and destroyed the character, of this 
opposition, proved in the end like those dangerous medicines 
which palliate the instant symptoms of a disease that they 
aggravate. The leaders of this parliament were, in general, 
very corrupt men ; but they knew better than to quit the 
power which made them worth purchase. Thus the house 
of commons matured and extended those rights of inquiring 
into and controlling the management of public affairs, which 
had caused so much dispute in former times ; and, as the ex- 
ercise of these functions became more habitual, and passed 
with little or no open resistance from the crown, the people 
learned to reckon them unquestionable or even fundamental; 
and were prepared for that niore perfect settlement of the 
constitution on a more republican basis, which took place 
after the revolution. The reign of Charles II., though dis- 
playing some stretches of arbitrary power, and threatening a 
great deal more, was, in fact, the transitional state between 
the ancient and modern schemes of the English constitution ; 
between that course of government where the executive 
power, so far as executive, was very little bounded except 
by the laws, and that where jt can only be carried on, even 
within its own province, by the consent and cooperation, in 
a great measure, of the parliament. 

The commons took advantage of the pressure which the 
war with Holland brought on the administration, Appropria- 
to establish two very important principles on the tion of 
basis of their sole right of taxation. The first of «"??"««■ 
these was the appropriation of supplies to limited purposes. 
Tliis, indeed, was so far from an absolute novelty, that it 
found precedents in the reigns of Richard II. and Henry 
IV. ; a period when the authority of the house of commons 
was at a very high pitch. No subsequent instance, I believe. 



England, bo they be men of estates, and leian, vol. ii. p. 373. By commonwealth's 

kt them sit but seven years, and they men he probably meant only men who 

will all turn commonwealth's men." Let- would stand up for public liberty agains* 

ters of Aubrey and others, from the Bod- the crown. — 1845.] 



118 APPROPRIATION OF SUPPLIES. Chap. XI 

was on recoid till the year 1024, when the last parliament 
of James I., at the king's own suggestion, directed their sup- 
ply for the relief of the Palatinate to be paid into the hands 
of commissioners named by themselves. There were cases, 
of a similar nature in the year 1641, which, though of course 
they could no longer be upheld as precedents, had accus- 
tomed the house to the idea that they had something more to 
do than simply to grant money, without any security or pro- 
vision for its application. In the session of 16G5, accord- 
ingly, an enormous supply, as it then appeared, of 1,250,000/., 
after one of double that amount in the preceding year, hav- 
ing been voted for the Dutch war, Sir George Downing, one 
of the tellers of the exchequer, introduced into the subsidy 
bill a proviso that the money raised by virtue of that act 
should be applicable only to the purposes of the war.^ 
Clarendon inveighed with fury against this, as an innova- 
tion derogatory to the honor of the crown ; but the king 
himself, having listened to some who persuaded him that the 
money would be advanced more easily by the bankers, in 
anticipation of the revenue, upon this better security for 
speedy repayment, insisted that it should not be thrown out.^ 
That supplies, granted by parliament, are only to be ex- 
pended for particular objects specified by itself, became, from 
this time, an undisputed principle, recognized by frequent 
and at length constant practice. It drew with it the neces- 
sity of estimates regularly laid before the house of com- 
mons ; and, by exposing the njanagement of the public rev- 
enues, has given to parliament, not only a real and effective 
control over an essential branch of the executive administra- 
tion, but, in some measure, rendered them partakers in it.* 
It was a consequence of this right of appropriation that 

1 This was carried on a division by men. They were a tribe that had risen 
172 to 102. Journals, 25th November, and grown up in Cromwell "s time, and 
16&5. It was to be raised " in a regulat- never were iieard of before the late 
ed subsidiary way, reducing the same to trouble, till when the whole trade of 
a certainty in all counties, so as no per- money had passed through the bunds of 
son, for his real or personal estate, be ex- the scriveners. They were, for the most 
empted." They seem to have had some part, goldsmiths — men known to be so 
difficulty in raising this vast subsidy, rich, and of so good reputation, that all 
Pariiamentary History, 305. the money of the kingdom would be 

2 17 Car. 2, c. 1. The same clause trusted or deposited in their hands." 
is repeated next year, and has become Life of Clarendon, vol. iii. p. 7. — 1845.] 
regular. [" The bankers did not consist 3 Life of Clarendon, p. 315. llatsell's 
of above the number of five or six men, Precedents, iii. 80. The principle of ap- 
some whereof were aldermen and had propriation was not carried into full 
been lord-mayors of London, and all the effect till after the Revolution. Id. 179, 
lest were aldermen or had fined for alder- 484. 



Cha. II. — 16G0-73. COMMISSION OF ACCOUNTS. 119 

the house of commons should bo able to sati-fy itself as to 
the expenditure of their moneys in the services ,, , , 

r 1-11 1 T-, "^ , . , , . Commiaaion 

tor whicli they were voted. But tliey might claim of public 
a more extensive function, as naturally derived '^^°"°'^- 
from their power of opening and closing the public purse, 
that of investigating tlie wisdom, faithfulness, and economy 
with which their grants had been expended. For this, too, 
there was some show of precedents in the ancient days, of 
Henry IV.; but what undoul)tedly had most influence was 
the recollection that during tiie late civil war, and in the 
times of the commonwealth, the house had superintended, 
through its committees, the whole receipts and issues of the 
national treasury. This had not been much practised since 
the restoration. But in the year 16G6, the large cost and 
indifferent success of the Dutch war begetting vehement 
suspicions, not only of profuseness but of diversion of the 
public money from its pro|)er purposes, the house appointed 
a committee to inspect the accounts of the officers of the 
navy, ordnance, and stores, wliicii were laid before them, as 
it appears, by the king's direction. This committee, after 
some lime, having been probably found deficient in powers, 
and particularly being incompetent to administer an oath, the 
house determined to proceed in a more novel and vigorous 
manner ; and sent up a bill, nominating commissioners to 
inspect the public accounts, who were to possess full powers 
of inquiry, and to report with respect to such persons as thev 
should find to have broken their trust. The immediate ob- 
ject of this inquiry, so far as appears from lord Clarendon's 
mention of it, was rather to discover whether the treasurers 
had not issued money without legal warrant tlian to enter 
upon the details of its ex[)enditure. But that minister, 
bigoted to his -tdpy creed of prerogative, thought it the high- 
est presumption for a parliament to intermeddle with the 
course of government. He spoke of this bill as an encroach- 
ment and usurpation that had no limits, and pressed the king 
to be firm in his resolution never to consent to it.* Nor was 
the king less averse to a parliamentary commission of this 
nature, as well from a jealousy of its interference with his 
prerogative as from a consciousness, which Clarendon him- 
self suggests, that great sums had been issued by his orders 

1 Life of Clarendon, p. 368. Burnet obserres, it was looked upru at the timci a* 
« great inuoTation : p. 336. 

VOL. 11. — C. 9 



120 COMMISSION OF ACCOUNTS. Chap Xt 

which could not be put in any public account ; that is (for 
we can give no otlier interpretation), that the moneys granted 
for the war, and appropriated by statute to that servic*', liad 
been diverted to supply his wasteful and debauched course 
of pleasures.^ It was the suspicion, or rather private knowl- 
edge, of this criminal breach of trust, which had led to tho 
bill in question. But such a slave was Clarendon to his 
narrow prepossessions, that he would rather see the dissolute 
excess's which he abhorred suck nourishment from that 
revenue which had been allotted to maintain the national 
honor and interests, and which, by its deficiencies thus ag- 
gravated, had caused even in this very year the navy to be 
laid up, and the coasts to be left defenceless, than suffer 
them to be restrained by the only power to which thought- 
less luxury would submit. He opposed the bill, therefore, 
in the house of lords, as he confesses, with much of that in- 
temperate warmth which distinguished him, and with a con- 
tempt of the lower house and its authority, as imprudent in 
respect to his own interests as it was unbecoming and un- 
constitutional. The king prorogued parliament while the 
measure was depending; but in hopes to pacify the house of 
commons, promised to issue a commission under the great 
seal for the examination of public accountants ; ^ an expe 
dient wbich was not likely to bring more to light than suited 
his purpose. But it does not appear that this royal commis- 
sion, tliough actually prepared and sealed, was ever carried 

1 Pepys's Diary has lately furnished perceive they did doubt what his answer 
gome things worthy to be extracted, could be.-' September 23, 166(5. — The 
" Mr. W. and I by water to Whitehall, money granted the king for the war he 
and thereat sir George Carteret's lodg- afterwards reckons at 0.690,000/., and the 
ings .sir William Coventry met; and we debt at 900.000/. The charge stated only 
did debate the whole business of our ac- at 3,200,000/. "So what is become of 
counts to the parliament ; where it ap- all this sum, 2.390,000/. ! " He mentions 
pears to us that the charge of the war afterwards, Oct. 8, the proviso in the poU- 
from Sept. 1, 160i, to this Michaelmas, tax bill, that there shall be a committee 
will have been but 3.200,000/., and of nine persons to have the inspection 
we have paid in that time somewhat on oath of all the accounts of the money 
about 2.200,000/., so that we owe about given and spent for the war, '• which 
900,0(X."/. : but our method of accounting, makes the king and court mad ; the king 
though it cannot, I believe, be far wide having given order to my lord chamber- 
from tlie mark, yet will not abide a strict lain to send to the playhouses and broth- 
examination, if the parliament should be els, to bid all the parliament-men that 
troublesome. Here happened a pretty were there to go to the parliament pres- 
question of sir William Coventry, wheth- entiy; but it was carried against the 
er this account of ours will not put my court by thirty or forty voices." It was 
lord treasurer to a difficulty to tell what thought, he says, Dec. 12, that above 
is become of all the money the parliament 400,000/. had gone into the privy purs« 
have given in this time for the war, which since the war. 
hath amounted to about 4.000,000/., 2 Life of Clarendon, p 392. 
Vhich nobody there could answer; but I 



Cha. II.— lGGO-73. DECLINE OF CLARENDON'S POWER. 121 

into effect ; for in the ensuing session, the great mini:.Uer's 
downfall having occurred in the mean time, the house of 
commons brouglit forward again their bill, which passed into 
a law. It invested the commissioners therein nominated 
with very extensive and extraordinary powers, both as to 
auditing public accounts and investigating the frauds that 
had taken place in the expenditure of money and employ- 
ment of stores. They were to examine upon oath, to sum- 
mon Inquests if they thought fit, to commit persons disobey- 
ing their orders to prison without bail, to determine finally 
on the charge and discharge of all accountants; the barons 
of the exchequer, upon a certificate of their judgment, were 
to issue process for recovering money to the king's use, as if 
there had been an immediate judgment of their own court. 
Reports were to be made of the commissioners' proceedings 
from time to time to the king and to both houses of parlia- 
ment. None of the commissioners were members of either 
house. The king, as may be supposed, gave way very re- 
luctantly to this interference with his expenses. It brought 
to light a great deal of abuse and misapplication of the public 
revenues, and contributed doubtless in no small degree to 
destroy the house's confidence in the integrity of government, 
and to promote a more jealous watchfulness of the king's 
designs.^ At the next meeting of parliament, in October, 
16G9, sir George Carteret, treasurer of the navy, was ex- 
pelled the house for issuing money without legal warrant. 

Sir Edward Hyde, whose influence had been almost anni- ^ 
hilated in the last years of Charles I. through the inveterate 
hatred of the queen and those who surrounded her, acquired 
by degrees the entire confidence of the young 
king, and bafiled all the intrigues of his enemies, clarendon's 
Guided by him, in all serious matters, during tlie p"'""- 
latter years of his exile, Charles followed his counsels almost 
implicitly in the difficult ci'isis of the i-estoration. The office 
(»f chanct^llor and the title of earl of Clarendon were the 
proofs of the king's favor ; but in effect, through the indo- 
ience and ill health of Southampton, as well as their mutual 

1 19 & 20 Car. II. c. 1. Burnet, p. 374. acted with more technical rigor than 

They reported unaccountel b;ilaucc3 of etiuity, surcharging the accountants fof 

1,509,161/., be.-^ides much that was ques- all suras not expended since the war be- 

tion.ibleia the payments. But, according gan, though actually expended for tlK 

to Kalph, p. 177. the commis-sioners had purposes of preparation. 



122 



DECLINE OF CLARENDON'S TOWER. Ciiai>. Xi 



friendship, he was the real minister of the crown.* By the 
claiuk'stiiie maniage of his daughter with the duke of York, 
he changed one brother from an enemy to a sincere and 
zealous friend, without forfeiting the esteem and favor of the 
otiier. And though he was wise enougli to dread the in- 
vidiousness of such an elevation, yet for several years it by 
no means seemed to render his influence less secure.'* 



1 Burnet, p. 130. Southampton left 
all tlie business of the treasury, accord- 
ing to Burnet, p. 131. in the hands of sir 
Philip Warwick, "a weak, but incorrupt 
man."' The kiuo;, he says, chose to put 
xip with his contradiction rather than 
make him popular by dismissing him. 
But in f ;ct, as we see by Clarendon's in- 
stance, the king retained his ministers 
long after he was displea-sed with them. 
Southampton's remissness and slowness, 
notwithstanding his integrity, Pepys 
Pays, was the cause of undoing tlie nation 
as much as anything ; " yet, if I knew 
all the difficulties he has lain under, and 
his instrument sir Philip Warwick, I 
might be of another mind." May 16, 
1667. — lie was willing to haye done 
something. Clarendon tells us, p. 415, to 
gr.itify the presbyterians; on which ac- 
count the bishops thovight him not 
enough affected to the church. His 
friend endeavors to extenuate this hei- 
nous sin of tolerant principles. 

- The behavior of lord Clarendon on 
this occasion was so extraordinary, that 
no credit could have been given to any 
other account than his own. The duke 
of York, he says, informed the king of 
the affection and friendship that had 
long been between him and the young 
lady ; that they had been long con- 
tracted, and that she was with child ; 
and therefore requested his majesty's 
leave that he might publicly marry her. 
The marquis of Ormond by the king's 
order communicated this to the chan- 
cellor, who " broke out into an immod- 
erate passion against the wickedness of 
his daughter ; and said, with all imagin- 
able earnestness, that as soon as he came 
home he would turn her out of his house 
as a strumpet to shift for herself, and 
would uever see her again. They told 
him that his passion was too violent to 
administer good counsel to him ; that 
they thought that the duke was married 
to his daughter; and tliat there were 
other measures to be taken than those 
which the disorder he was in had sug- 
gested to him. Whereupon he fell into 
new commotions ; and said, If that were 
true, he was well prepared to advise what 
was to be done ; that he had much 



rather his daughter should be the dnke'e 
whore than his wife : in the former case, 
nobody could blame him for the resolu- 
tion he had tiiken, for he was not obliged 
to keep a whore for the greatest prince 
alive ; and the indignity to himself he 
would submit to the good pleasure of 
God. But, if there were any reason tc 
suspect the other, he was ready to give 
a positive j'ldgment, in which he hoped 
their lordships would concur with him, 
that the king should immediately eau.se 
the woman to be sent to the Tower nvrl 
cant into tlie dungeon, under so strict a 
guard that no person living should be 
admitted to come to her ; and then th.at 
an act of parliament shouliJ be imme.- 
tliately passed for cutting off lier head, 
to wliich lie ivoiilri not only give his con- 
sent, but would very willingly be the JirsI 
man that should propose it. And who- 
ever knew the man will believe that he 
said all this very heartily." Lord South- 
ampton, he proceeds to inform us. on the 
king's entering the room at the time, said 
very naturally that the chancellor was 
mad, and had proposed such extravagant 
things that he was no more to be con 
suited with. This, however, did not 
bring him to his sen,«es ; for he repeated 
his strange proposal of " sending her 
presently to the Tower, and the rest ; " 
imploring the king to take this course, 
as the only expedient that could free him 
from the evils that this business would 
otherwise bring upon him. 

That any man of sane intellect should 
fall into such an extravagance of passion 
is sufficiently wonderful: tliat he should 
sit down in cool blood several years after- 
wards to relate it is still more so ; and 
perhaps we shall carry our candor to an 
excess, if we do not set down the whole 
of this scene to overacted hypocrisy. 
Charles II., we may be very sure, could 
see it in no other light. And here I must 
take notice, by the way, of the singular 
observation the worthy editor of Burne* 
has made : — '' King Charles's conduct m 
this business was excellent throughout . 
that of Clarendon loortliy an ancient Ha- 
inan.'''' We have indeed a Roman pre- 
cedent for subduing the sentiments of 
nature, rather then permitting a dauithtel 



CnA. II. — 1G60-73. 



CLARENDON. 



123 



Both in their cluiracters, however, and turn of thinking, 
there was so little (.-onformity between Clarendon and his 
master, that the continuance of his ascendency can only be 



to iucur disgrace through the passions of 
tUe greilt ; but I thiuk Virgiiiiu.s would 
not quite have understooj the feeliugs 
of Clarendon. Sueh virtue was more 
like whut Montesquieu calls " PheroiBme 
de IVsc-lavage," and was just fit for the 
court of Goudar. But with all this vio- 
lence that he records of himself, he 
deviates greatly from the truth : " The 
king '■ (he sajs) " afterwards spoke every 
day about it, and told the chancellor 
that he must beliave himself wisely, for 
that the thing was remediless, and that 
his majesty knew that they were mar- 
ried: wiiich would quickly appear to all 
men who knew that nothing could be 
done upon it. In thi' tiuie the chancel- 
lor had conferred with hi.« daughter, 
witjout anything of indulgence, and not 
onl) discovered that they were unques- 
tionably married, but bi/ whom, am/ who 
wrre present at it, v>hn woulil he ren'ly In 
arnii; it; which pleased him not. though 
it diverted him from using some of that 
rigor which he intended. And he saw 
no other remedy could be applied but 
tliat which he had proposed to the king, 
who thought of nothing like it." Life 
of Clarendon, 29, et post. 

Every one would conclude from this 
that a marriage had been solemnized, if 
not betore their arrival in England, yet 
before the chancellor had tliis conference 
with his daughter. It appears, however, 
from the duke of York's declaration in 
the books of the privy council, quoted 
by Ualph, p. 40, that he was contracted 
to Ann Hyde on the 24th of November, 
16.')9. at Hreda: and after that time lived 
with her as his wife, though very se- 
cretly ; he married her 3d Sept. 1660. 
according to the English ritual, lord 
Ossory giving her aw.ay. The first child 
was born Oct. 22, 1660. Now, whether 
the contract were sulfiiient to constitute 
a valid marriage will depend on *wo 
things ; first, upon the law existing at 
Breda; seconJly, upon the applicability 
of what is commonly called the rule of 
the lex loci to a marriage between such 
persons according to the received notions 
of English lawyers in that age. But, 
even admitting all this, it is still man- 
ifest that Clarendon s expressions point 
to an actual celebration, and are conse- 
quently intended to mislead the reader. 
Certain it is, that at the Ume the con- 
tract .seems to have been reckoned only 
an honorary obligation. .lames tells us 
himself (Macplierson's Extracts, p. 17) 
that he promised to luarry her ; and 



" though, when he asked the king for 
his leave, he refused and di.ssuaded him 
from it, yet at last he opposed it no more, 
and the duke married her privately, and 
owned it some time after." His biogra 
pher. writing from James's own manu- 
script, adds, " It may well be suppo.sed 
that my lord chancellor did his part, but 
with great caution and circumspeclion, 
to soften the king in that matter which 
in every respect seemed so much for his 
own advantage '" Life of James, 387. 
And Pepys iiiserts in his Diafy, Feb. 23, 
1601, " Mr. 11. t lid nie how my lord 
chancellor had lately got the duke of 
York and duchess, and her woman, 
my lord Os.sory and a doctor, to make 
oath before most of the judges of the 
kingdom, concerning all the circum- 
stances of their marriage. And, in fine, 
it is confessed that they were not fully 
married till about a month oi- two before 
she was brought to bed ; but that they 
were contracted long before, and [were 
married] time enough for the child to be 
legitimate. Eat I do not hear that it 
was put to the judges to determine that 
it was so or not." There was no ques- 
tion to put about the child's legitimacy, 
which w.as beyond all doubt. lie had 
said before that lord Sandwich told him, 
17th Oct. 1630, "the king wanted him 
[the duke] to marry her, but he would 
not." This seems at first sight incuu- 
sistent with what James says himself. 
But at this time, though the private 
marriage had really taken place, he had 
been persuaded h\ a most infamous con- 
spiracy of some profligate courtiers that 
the lady was of a licejitious character, 
and that Berkeley, afterwards lord Fal- 
mouth, had enjojed her favors. Life of 
Clarendon, b-i. It must be presumed 
that those men knew only of a ccmtract 
which they thought he could break. 
Hamilton, in the Memoirs of tJiammont, 
speaks of this transaction with his u.-.ual 
levity, though the parties showed them- 
selves as destitute of spirit as of honor 
and humanity. Clarendon, we must be- 
lieve (and the UiOst favorable hypothesis 
for him is to give up his veracity), would 
not permit his daughter to be made th« 
victim of a few perjured debauchees, and 
of her husband's fickleness or credulity. 
[Upon reconsiilering this note, 1 think 
it probable that Clarendon's conversation 
with his daughter, when he ascertained 
her marriage, \>as subsequent to the 3d 
of September. It is always difficult to 
make out his da.les. - l'^.] 



124 CLARENDON. Chap. XI. 

attributed to the power of early habit over the most thought- 
less tempers. But it rarely happens that kings do not ulti- 
mately shake off these fetters, and release themselves from 
the sort of subjection \v*hich they feel in acting always by the 
same advisers. Charles, acute himself and cool-iieaded, could 
not fail to discover the passions and prejudices of his minister, 
even if he had wanted the suggestion of others who, without 
reasoning on such broad principles as Clarendon, were per- 
haps his superiors in judging of temporary business. He 
wished, too, as is common, to depreciate a wisdom, and to 
suspect a virtue, which seemed to reproach his own vice and 
folly. Nor had Clarendon spared those remonstrances against 
the king's course of life which are seldom borne without im- 
patience or resentment. He was strongly suspected by the 
king as well as his courtiers (though, according to his own 
account, without any reason) of having promoted the mar- 
riage of Miss Stewart with the duke of Richmond.-' But 
above all he stood in the way of projects whicli, though still 
probably unsettled, were floating in the king's mind. No one 
was more zealous to uphold the prerogative at a height where 
it must overtop and chill wdth its shadow the privileges of the 
people. No one was more vigilant to limit the functions of 
parliament, or more desirous to see them confiding and sub- 
missive. But there were landmarks which he could never 
be brought to transgress. He would prepare Ihe road for 
absolute monarchy, but not introduce it; he would assist to 
batter down the walls, but not to march into the town. His 
notions of what the English constitution ought to be appear 
evidently to have been derived from the times of Elizabeth 
and James I., to which he frequently refers with approbation. 
In the history of that age he found much that could not be 
reconciled to any liberal principles of government. But 
there were two things which lie certainly did not find — a 
revenue capable of meeting an extraordinary demand without 
parliamentary supply, and a standing army. Hence he took 
no pains, if he did not even, as is asserted by Burnet, dis- 
courage the proposal of others, to obtain such a fixed annual 
revenue for the king on the restoration as would have ren- 



i Hamilton mentions this as the cur- any acquaintam^e •witli the parties, lie 

Tent rumor of the court, and Burnet has wrote in too humble a strain to the king 

done the same. But Clarendon hiir.self on the subject. Life of Clar. p. t&l. 
Icuies that he had any conceri. in it, or 



Cha. II. — lGGO-73. 



CLARENDON. 



125 



dered it very rarely necessary to have recourse to parlia- 
ment,^ ami did not' advise the keeping up any part of the 
arntiy. Tliat a few troops were retained was owing to the 
duke of York. Nor did he go the length that was expected 
k procuring the repeal of all the laws that had been enacted 
in the long parliament.^ 

These omissions sank deep in Charles's heart, especially 
when he found that he had to deal with an unmanageable 
house of commons, and must fight the battle for arbitrary 
power; which might have been achieved, he thought, without 
a struggle by his minister. There was still less hope of ob- 
taining any concurrence from Clarendon in the king's designs 
as to religion. Though he does not once hint at it in his 
wi-Itings, there can be little doubt that he must have suspected 
his master's inclinations towards die church of Rome. The 
duke of York considered this as the most likely cause of his 
remissness in not sufficiently advancing the prerogative.^ He 
was always opposed to the various schemes of a general in 
dulgence towards popeiy, not only fi-om his strongly protes 
tant principles and his dislike of all toleration, but from a 
prejudice against the body of the English catholics, whom he 
thought to arrogate more on the ground of merit than they 
could claim. That interest, so powerful at court, was decided- 
ly hostile to the chancellor ; for the duke of York, who strict- 
ly adhered to him, if he had not kept his change of religion 



1 Burnet fays that Southampton had 
come iuto a scheuie of obUiiuin;; 2.000,000/. 
as the annual revenue; which wa.s pre- 
vented by Clarendon, lest it .should put 
the king out of need of parliauient.s. 
This the king found out, and hated liira 
mortally for it. P. 223. It i.s the fashion 
to discredit all tliat Burnet says. But 
observe what we may read in Pepys : 
" Sir W. tJoventry did tell me it as the 
wisest thing that was ever said to the 
king by any statesman of his time ; and 
it was by my lord-treiisurer that is dead, 
whom, i find, he takes for a very great 
statesman, that, when the king did show 
hims(!lf forward for passing the act of 
indemnity, he did advise the king that 
he would hold his hand in doing it, till 
he had got his power restored that had 
been diuiinished by the late times, and 
his revenue settled in such a manner as 
he might depend upon himself witliout 
resting upon parliaments, and then pass 
it. But my lord chancellor, who thousriit 
he could iiave the command of parlia- 
ments forever, because for the king's sake 



they were awhile willing to grant all the 
ki.ig desired, did press for its being done; 
and so it was, and the king from that 
time able to do nothing with the parlia- 
ment almost." March 20, 1669. Ran 
quippe boni 1 Neither Southampton nor 
Coventry make the figure in this extract 
we should wish to find; yet who were 
their superiors for integrity and patriot 
ism under Charles II.? Perhaps Pi-pjs, 
like most gossiping men, was not ahvayi 
correct. 

'- llacpherson's Extracts from Life of 
James, 17, 18. Compare Innes's l.ife n. 
James, published by Clarke, i. 3'Jl. 393. 
In the former work it is said that Clai- 
endon, upon Venncr"s insurrection, ad- 
v.sed that the guards should uot be dis- 
banded. But this seems to be a mistake 
in copying: forClarendon. read the duke 
of York. I'epys, however, who heard all 
the go.ssip of the town, mentions the year 
after that the chancellor thought of rais- 
ing an army, with the duke as genrraJ 
Uec. 22, 1661. 

a Ibid. 



126 



COALITION AGAINST CLARENDON. 



Chap. XL 



wholly secret, does not seem to have hitherto formed auy 
avowed connection with the popish party.^ 

Tiiis estrangement of the king's favor is sufficient to ac- 
Lossofthe count for Clarendon's loss of power ; but his entire 
kings favor, ruin was rather accomi)lished by a strann;e coali- 

Coalition . „ . I'll- • !• 

against tion ot cncmies, winch liis vu-tues, or Ins errors 

Oiareudon. ^^^^l intimiities, had broiiglit into union. The cava- 
liers hated him on account of the act of indemnity, and the 
presbyterians for that of uniformity. Yet the latter were not 
in general so eager in his pro-ecution as the others."^ But he 
owed great part of the severity with which he was treated to 
his own pride and ungovernable passionateness, by which he 



1 The earl of Bristol, with all his con- 
stitutional precipibincy, made a violent 
attack on Clarendon, by exhibiting arti- 
cles of treason against him in the house 
of lords in 1663 ; believing, no doubt, that 
the schemes of the intriguers were more 
mature, and the king more alienated, 
than was really the case, and thus dis- 
graced himself at court instead of his en- 
emy. Pari. Hist. 276. Life of Clar. 209. 
Before this time Pepys had heard that the 
chancellor had lost the king's favor, and 
that Bristol, with Buckiugh.am and two 
or three more, ruled him. Mny 15, 1663. 

2 A motion to refer the heads of charge 
ngainst Clarendon to a committee was lost 
by 194 to 128; Seymour and Osborne 
telling the noes. Birch and Clarges the 
ayes. Commons' Journals, Nov. 6, 1667. 
These names show how parties ran ; Sey- 
mour and Osborne being high-flying cav- 
aliers, and Birch a presbyterian. A mo- 
tion that he be impeiiched for treason on 
the first article was lost by 172 to 1U3. 
the two former being tellers for the nyes: 
Nov. 9. In the Harleian MS. 881, we 
have a copious account of the deb.ites on 
this occasion, and a transcript in No. 1218. 
Sir llene;ige Finch spoke much against 
the charge of treason ; Maynard seems to 
hav? d"ne the same. A charge of secret 
correspondence with Cromwell was in- 
troduced merely ad invidiam, the prose- 
cutors admitting that it was pardoned by 
the act of indemnity, but wishing to 
make the chancellor plead that : Ma} nard 
and Il.iinpden opposed it. and it was giv- 
en up out of shame without a, vote. 
Vaughan, afterwards chief-justice, argued 
that counselling the.king to govern by a 
standing army was treason at common 
law, and seems to dispute what Finch laid 
down most broadly, that there can be no 
Buch thing as a common-law trea.son ; re- 
lying on a passage in Glanvill, where " se- 
ductio doiuiui regis " is said to be trea- 



8on. Maynard stood up for the opposite 
doctrine. Waller and Vaugnan argued 
that the sale of Dunkirk Wiis treason, but 
the article passed without declaring it to 
be .so ; nor would the word have appeared 
probably in the impeachment, if a young 
lord, Vaughan, had not asserted that he 
could prove Clarendon to have betrayed 
the king's councils, on which an article 
to that effect was carried by 161 to 89. 
Garraway and Littleton were forward 
against the chancellor ; but Coventry 
seems to have taken no great part. See 
Pepys's Diary, Dec. 3d and 6th, 1667. 
Baxter also says that the presbytei-ians 
were by no means strenuous against Clar 
endon, but rather the contrary, fearing 
that worse might come for the country, 
as giving him credit for having kept off 
military government. Baxter's Life, part 
iii. 21. This is very highly to the honor 
of that party whom he liad so much op- 
pressed, if not betrayed. "It was a no- 
table providence of God," he .says, " that 
this man, who had been the great instru- 
ment of state, and done almost all, and 
had dealt so cruelly with the nou-con- 
formists, should thus by his own friends 
be cast out and banished ; while those 
that he had per.secuted were the most 
moderate in his cause, and many for him. 
And it was a great ease that befell the 
good people throughout the laud by his 
dejeclion. F'or his way was to decoy men 
into conspiracies or to pretend plots, and 
upon the rumor of a plot the innocent 
people of many countries were laid in 
prison, .so that no man knew when he 
was safe. Whereas since then, though 
laws have been made more and more se- 
vere, yet a man knoweth a little better 
what he is to expect when it is by a law 
that he is to be tried." Sham plots there 
seem to have been ; but it is not reason 
able to chai-ge Clarendon with inveoting 
them. Ralph, 122. 



JHA. II. — 1660-73. HIS IMPEACHMENT. 127 

liad rendered veiy eminent men in the house of commons 
implacable, and to the languajze he liad used as to the dignity 
and privileges of the house itself.* A sense of this eminent 
person's great talents as well as general integrity and con- 
scientiousness on the one hand, an indignation at the king's 
ingratitude and the profligate counsels of those Avho sup- 
[)lanted him on the other, have led most writers to overlook 
iiis faults in administration, and to treat all the articles of 
accu.-ation against him as frivolous or unsupported. It ia 
doubtless impossible to justify the charge of high- nisimpeach- 
treason on which he was impeached ; but there are nieptjsome 
matters that never were or could be di>{)roved; and u'^n'ot'^un- 
our own knowledge enables us to add such grave fo""JeJ- 
accusations as must show Clarendon's unfitness for the gov- 
ernment of a free country.^ 

1. It is the fourth article of his impeachment that he ''ad- 
vised and procured divers of his majesty's subjects nipgai im- 
to be imprisoned against law, in remote islands, pnsonments. 
garrisons, and other places, thereby to prevent them from 
the benefit of the law, and to produce precedents for the 
imprisoning any other of his majesty's subjects in like man- 
ner." This was undoubtedly true. There was some ground 
for apprehension on the part of the government from those 

1 In liis wrath against the proviso in- to compass anything, though never so 

serted by sir Georjje Downing, as above good for the kingdom, unless approved 

mentioned, in the bill of supply, Clar- of by the chancellor; he managing aU 

endon told him, as he confesses, that the things with that greatness which now 

king could never be well served while will be removed, that toe king may have 

fellows of his condition were admitted to the benefit of othei-s' advice?' Sept. 2, 

speak as much as they had a mind ; and 1667. His own memoirs are full of proofs 

that in the best times such presumptions of this haughtiness and intemperance, 

had been punished with imprisonment by He set himself against Sir William Coven- 

the lordsofthecoancil, without the king's try and speaks of a man as able and vir- 

tuking notice of it: 321. The king was tuous as himself with marked aversion, 

uuturally displeased at this insolent Ian- See, too, Life of .James, 398. Coventry, 

guage towards one of his servants, a man according to this writer, 431, was the 

who had tilled an eminent station, and chief actor in Clarendon's impeachment, 

done services, for a suggestion intended but this seems to be a mistake; though 

\o benefit the revenue. And it was a he was certainly desirous of getting him 

»till more flagrant affront to the hou.se of out of place. 

.'ommons, of which Downing was a mem- The king, Clarendon tells us (438), pro- 
ber, and where ho had proposed this tended th.it the anger o(" parliament wa3 
clause, and induced the house to adopt such, and their power too. as it was not 
it. in his power to save him. The fallen 

Coventry told Pepyg '"many things minister desired him not to Itar the 

about the chancellors dismissal not (it power of parliament, " which was more 

to be spoken; and yet not any unfaith- or less, or nothing, as he pleased to make 

fulness to the king, but instar omnium, it." So preposterous as well as uncon 

that he was so great at the council-board stitutioual a way of talking could not 

and in the admiuistratiou of matters but aggravate his unpopularity with ^hal 

there was no room for anybody to pro- great body he pretended to contemn, 
pose any remedy for what wis amiss, or - S»".te Trials, vi. 318. I'arl. Uist 



128 mPEACHMENT Ob CLARENDON. Chap. XL 

bold spirits wlio liad been accustomed to revolutions, and 
drew encouragement from the vices of the court and the em- 
bari'assraents of the nation. Ludlow and Algernon Sidney, 
about the year 16(55, had projected an insurrection, the latter 
soliciting Louis XIV. and the pensionary of Holland for aid.^ 
Many otlic(!rs of the old army, Wildman, Creed, and others, 
suspecletl, perha])s justly, of" such conspiracies, had been 
illegally detained in prison for several years, and only re- 
covered tlieir liberty on Clarendon's dismissal.^ He had too 
much encouraged the hateful race of informers, though he 
aduiits tliat it liad grown a trade by whicii men got money, 
and that many were committed on slight grounds.^ Tlius 
colonel Hutchinson died in the close contiuement of a remote 
prison,, far more probably on account of his share in the 
death of Charles L, from which the act of indemnity had 
discliai'ged him, than any just pretext of treason.* It was 
difficult to obtain a habeas corpus from some of the judges 
in this reign. But to elude that provision by removing men 
out of the kingdom was such an offence against the constitu- 
tion as may be thought enough to justify the impeachment 
of any minister. 

2. The first article, and certainly the most momentous, 
asserts, " Tliat the earl of Clarendon hath designed a stand- 
ing army to be raised, and to govern the kingdom thereby, 
and advised the king to dissolve this present parliament, to 
lay aside all thoughts of parliaments for the future, to gov- 
ern by a military power, and to maintain the same by free 
quarter and contribution." This was prodigiously exagger- 
ated ; yet there was some foundation for a part of it. Ir 
the disastrous summer of 1GG7, when the Dutch fleet had 
insulted our coasts and burned our ships in the Medway, the 
exchequer being empty, it was proposed in council to call 
together immediately the parliament, which then stood pro- 
rogued to a day at the distance of some months. Clarendon, 
who feared the hostility of the house of commons towards 
himself, and had pressed the king to dissolve it, maintained 
that they could not legally be summoned before the day 

1 Ludlow, iii. 118, 165, et post. Clar- 78, et post; llarris's Lives, v. 1S2, for the 
endoa's Life, 290. Burnet, 226. (Euvres proofs of this. 

de Louis XIV. ii. 204. * Mem. of Hutchinson, 303. It seems, 

2 Harris's Lives, v. 28. Biogr. Brit, however, that he was suspected of .some 
art. ILtaacJGTON. Life of James, 396. concern with an intended rising in 1663, 
Somers Tracts, vii. 530, 534. though uothins was proved against him. 

3 See Keunet's Register, 757; Ralph, Miscellanea Aulica, 319. 



CnA. II. — 1060-73. IMPEACKMENT OF CLARENDON. 129 

fixed ; and, with a sitrange inconsistency, attaching more ina- 
portancc to the tbrniaUtles of law than to its essence, advised 
tiiat the counties where the troops were quartered should 
be called upon to send in provisions, and those where there 
were no troops to contribute money, which should be abated 
out of the next taxes. And he admits that he might have 
used the expression of raising contributions, as in the late 
civil war. This unguarded and unwarrantable language, 
thrown out at the council-table where some of his enemiea 
were sitting, soon reached the ears of the commons, and, min- 
gled up with the usual misrei)resentations of faction, was 
magnified into a charge of high-treason.^ 

3. The eleventh article charged lord Clarendon with hav- 
ing advised and effected the sale of Dunkirk tosaieof 
the French king, being part of his majesty's do- i>un'''rk. 
minions, for no greater value than the ammunition, artillery, 
and stores were wortli. The latter part is generally asserted 
to be false. The sum received is deemed the utmost that 
Louis would have given, who thouglit he had made a close 
bargain. But it is very difficult to reconcile what Clarendon 
asserts in his defence, and much more at length in his Life 
(that the business of Dunkii'k was entirely decided, before 
he had anything to do in it, by the advice of Albemarle and 
Sandwich), with the letters of d'Estrades, the negotiator in 
this transaction on the part of France. In these letters, 
written at the time of Louis XIV., Clarendon certainly 
appears not only as tlie person chiefly concerned, but as 
representing himself almost the only one of the council fa- 
vorable to the measure, and having to overcome the decided 
repugnance of Southampton, Sandwich, and Albemarle.'^ I 

1 Life of Clarendon, 424. Pepys says which certainly does not tally with some 

the parliament was called together other authorities, that DuukirK had been 

''against the duke of York's niind tlatly, so great an object with Cromwell, that it 

who did rather advise tlie king to raise was the stipulated price of the Knglish 

money as he pleased ; and against the aliiance. Louis, however, was vexed at 

chancellor, who told the king that queen this, and determined to recover it at any 

Elizabeth did do all her business in 1588 price : il est ccrtiiin que je ne pouvois 

without calling a parliament, and so trop donner pour raciieter Dunkerque 

might he do for anything he saw." June lie sent d'Kstrades accordingly to Kug 

25, IGGT. He probably got this from his land in 10(51, directing him to make thin 

friend sir W. Coventry. his great object. Charles told the am 

'- lialph. 78, &c. The overture came ba.ssador that Spain had made him great 

from Clarendon, the French having no offers, but he would rather treat with 

expectjitioa of it. The worst was that, France. Louis was delighted at this; 

just before, he had dwelt in a speech to and though the sum asked was con.sider- 

parliameiit on the iuiportancc of Dun- able, 5.000,000 livres, he would not bre:ik 

kirk. This was on May 19, 1G62. It off, but finally concluded the treaty foi 

appears by Louis XlV.'a own account, 4,000,000, payable in three years; nay, 



130 IMrEACllJlENT (JV CLAUEKDUN. Chap. Xi. 

cannot indeed see any other explanation than that he mag 
nilicd tlie obstacles in the way of" this treaty, in order to 
obtain better terms; a nianageinent not very unusual in dip- 
lonialical dealing, but, in the degree at least to which he 
carried it, scarcely reconcilable with the good faith we should 
expect from this minister. For the transaction itself, we can 
hardly deem it honorable or politic. The expense of kee[)ing 
up Dunkirk, though not trilling, would have been willingly 
defrayed by parliament ; and could not well be pleaded by a 
government which had just encumbered itself with the use- 
less burden of Tangier. That its possession was of no great 
direct value to P^ngland must be confessed ; but it was an- 
other question whether it ought to have been surrendered 
into the hands of France. 

4. This close connection with France is indeed a great re- 
proach to Clarendon's policy, and was the spring of mischiefs 
to which he contributed, and which he ought to have fore- 
seen. What were the motives of the^e strong professions of 
attachment to the interests of Louis XIV. which he makes 
ill some of his letters it is difficult to say, since he had un- 
doubtedly an ancient prejudice against that nation and its 
government. I should incline to conjecture that his knowl- 
edge of the king's unsoundness in religion led him to keep 
at a distance from the court of Spain, as being far more 
zealous in its popery, and more connected with the Jesuit 
faction, than that of France ; and this possibly influenced 
him also with respect to the Portuguese match, wherein, 
though not the first adviser, he certainly took much interest; 
an alliance as little judicious in the outset as it proved event- 
„ ,. ., ,. ually fortunate.^ But the capital misdemeanor 

Solicitation .' . i . . , ,-, 

of French tiiat he Committed in this relation with t ranee 
money. ^^,^g ^.j^^ clandestine solicitation of pecuniary aid 

for the king. He firat taught a lavish prince to seek the 
wages of dependence in a foreign power, to elude the control 

Bared 500,000 without its being found gether correct, the king of Francs did 

out by the English, for, a banker having not fancy he had made so bad a bargain; 

offered them prompt payment at tl is dis- and indeed, with his projects, if he had 

count, they gladly accepted it; but this the money to spare, he could not think 

banker was a person employed by Louis so. Compare the Memoires d'Kstrades, 

himself, who had the money ready. He »nd the supplement to the third volume 

had the greatestanxiety about this affair; of Clarendon State Papers. The histo- 

for the city of London deputed the lord- rians are of no value, except as they copy 

mayor to offer any sum .so that Dun- from .some of these original testiuiouies. 

kiric might not be ali nated. (Eiivres i Lifeof Clarendon, 78. • Life of .lames. 

de Louis XIV. 1. 167. Lf this be alto- 393 



Cha. II. — lGGO-73. HIS FAULTS AS A MINISTER. 131 

of parliament by the lielp of French money^ The purpose 
for which this aid was asked, the succor ot" Portugal, might 
be fair and hiudable ; but the precedent was most base, dan- 
gerous, and abominabh*. A king who had once tasted the 
sweets of dishonest and clandestine lucre would, in the words 
of the poet, be no more cai)able afterwards of abstaining from 
it than a dog from his greasy offal. 

These are the errors of Clarendon's political life ; which, 
besides iiis notorious concurrence in all measures ^, ,„ ,„ 

. . Clarendon's 

of severity and restraint towards the non-conform- faults as a 
ists, tend to diminish our respect for his memory, ™""''''^''- 
and to exclude his name from that list of great and wise 
ministers where some are willing to place him near the head. 
If I may seem to my readers less favorable to so eminent a 
person than common history might warrant, it is at least to 
be said that I have formed my decision from his own re- 
corded sentiments, or iroin equally indisputable sources of 
authority. The publication of his Life, that is, of the his- 
tory of his administration, has not contributed to his honor. 
We lind in it little or nothing of that attachment to the con- 
stitution for which he had acquired credit, and some things 
which we must struggle hard to reconcile with his veracity, 
even if the suppression of truth is not to be reckoned an 
impeacli.ment of it in an historian.^ But the manifest profli- 

1 See supplement to third volume of from the great duties of an historian as a 
Clareiulou State Papers for abuudant moral blemish iu his character. lie dares 
evidence of the close connection between very frequently to say what is not true, 
the courts of France and Kn;^land. The ami what he must liave l;nown to beoth- 
former olfered bribes to lord Clarendon ' erwise ; he does not dare to say what is 
so fre(|Ui'ntly a:id unceremoniously, that true. .\ud it is almost an aprgravation 
one is Jispo.sed to think he did not show of this reproach that he aimed to deceive 
8omucli indijjiiatiou at tlie first overture posterity, and poisoned at the fountain a 
as he ought to have done. See p. 1, 4, stream from which another generation 
18. Tlie aim of Louis was to etfect tbe wa.s to drink. No defence has ever been 
match with Catherine. Spain would liave set up for the tidelity of Clarendon's Ilis- 
giveu a t;re.tt portion with any protestant tory ; nor can men who have sifted the 
princess, in order to break it. Claren- authentic materials entertain much dif- 
doD a*ked. on liis ma-ster's account, for ference of judgment in this respect; 
60,(XtO/. to avoid application to ptrlia- though, as a monument of powerful abil- 
jucut : p. 4. The French offered a se- ity and impressive eloquence, it will al- 
cret loan, orsubsidy pcr'.iaps, of 2.000,000 ways be read with that delight which we 
livres fnr the succor of I'ortugil. Tnis receive from many great historians, es 
was accepted by Clarendon — p- 15 ; but pecially the ancient, independent of any 
I do not find anything more about it. confidence in their veracity. 

2 As no one who regards witli atfcich- One more instance, before we quit lord 
meiit the present system of tlie English Clarendon forever, may here be men- 
consdtution can look upon lord Clareu- tioned of his di.^regard for truth. The 
don US an excellent minister, or a friend strange tale of a fruitless search after the 
to the soundest principles of civil and re- restoration for the body of Charles I. is 
ligious liberty, so no man whatever can well known. Lords Southampton and 
avoid CO) isidering his incessant deviations Lind-sey, he tells U3, who had assisted at 



132 



CLARENDON'S FLIGHT 



Chap. XI. 



gacy of those who contributed most to his ruin, and the 
measures which the court took soon afterwards, have ren- 
dered his administration comparatively honorable, and at- 
tached veneration to his memory. \Ve are unwilling' to 
believe that there was anything to censure in a minister 
whom Buckingham persecuted, and against whom Arlington 
intrigued.^ 

An eminent characteristic of Clarendon had been his fina- 
His usii- ness, called indeed by most pride and obstinacy, 
lanimous wliich HO circumstanccs, no perils, seemed likely 
^'^'^'' to bend. But his spirit sunk all at once with his 

fortune. Clinging too long to othce, and cheating himself 
against all probability with a hope of his master's kindness 
when he had lost his confidence, he forgot that dignified phi- 
losophy which ennobles a voluntary retirement, that stern 
courage which innocence ought to inspire ; and, hearkening 
to the king's treacherous counsels, fled before his enemies 
into a foreign countiy. Though the impeachment, at least 



their master's obsequies in St. George's 
chapel at Windsor, were so overcome 
with grief that they could not rt cognize 
the place of interment ; and after several 
vain attempts the search was abandoned 
in despair. Hist, of Rebellion, vi. 244. 
Whatever motive the noble historian may 
have had for tliis story, it is absolutely 
incredible that any such ineffectual 
search was ever made. Nothing could 
have been more easy than to have taken 
up the pavement of the choir. But this 
was unnecessary. Some at least of 
the workmen employed must have re- 
membered the place of the vailt. Nor did 
it depend on them ; for sir Thomas Her- 
bert, who was present, had made at the 
time a note of the spot, "just opposite the 
eleventh stall on the king's .side.-' Her- 
bert Memoirs, 142. And we tind from 
Pepys's Diary, Feb. 20, 1666, that " he was 
shown at Windsor where the late king 
was buried, and king Henry VIII., and 
my lady Seymour." In which spot, as is 
■well known, tlie royal body has twice 
been found, once in the reign of Anne, 
and agnin in 1813. [It lias been some- 
times suggested that Charles II., having 
received a large sum of money from par- 
liament towards his father's funeral, 
chose to have it believed that the body 
could not be found. But the vote of 
70,000/. by the commons for this purpose 
was on .Ian. 30, 1(378, loi'g after the pre- 
tended search which Clarendon has men- 
tioned. Wren was directed to make a de 



sign for a monument, which is in All 
Souls' College: but no further steps were 
taken. Kllis's Letters, 1st series, vol. iii. 
p. 329. It seems very unlikely th:it the 
king ever got the money which had been 
voted, and the next parliaments were 
not in a temper to repeat the offer, — 
1845.] 

1 The tenor of Clarendon's life and 
■writings almost forbids any surmise of 
pecuniary corruption. Yet this is insinu- 
ated bv Pepys.ou theauthority of Evelyn, 
April 27, and May 16, 16G7. But the 
one was gossiping, though shrewd; and 
the other feeble, though accomplished. 
Lord Dartmouth, who lived in the ne.xt 
age, and whose splenetic humor makes 
him no good witness against anybody, 
charges him with receiving bribes from 
the main instruments and promoters of 
the late troubles, and those who had 
plundered the royalists, which enabled 
him to build his great mansion in Picca- 
dilly ; asserting that it was full of pic- 
tures belonging to families who had been 
despoiled of them. " And whoever had 
a mind to see \vhat great families had 
been plundered during the civil war might 
find some remains either at Clarendon- 
house or at Cornbury." Note on Burnet, 
88. 

The character of Clarendon as a min- 
ister is fairly and judiciously drawn by 
Macpherson, Hist, of England, 98 ; a 
work by no means so full oif a tory spiril 
as has been supposed. 



Cha. II. — 16G0-73. AND BANISHMENT. 133 

in the point of high-trea?on, cannot be defended, it is impos- 
sible to deny that the act of banishment, under the andoonse- 
circumstances of his flight, was cai)able, in the nueut ban- 
main, of full justification. In an ordinary criminal '"^ '°'^°'' 
suit, a process of outlawry goes against the accused who flies 
from justice ; and his neglect to appear within a given time 
is equivalent, in cases of treason or felony, to a conviction of 
(he otll'nce ; can it be complained of, that a minister of state, 
who dares not confront a parliamentary impeachment, should 
be visited with an analogous penalty ? But, whatever in- 
justice and violence may be found in this prosecution, it 
established forever the right of impeachment, which the dis- 
credit into which the long parliament had fallen exposed to 
some hazard ; the strong abettors of prerogative, such a? 
Clarendon himself, being inclined to dispute this responsibil- 
ity of ihe king's advisers to parliament. The commons had, 
in the preceding session, sent up an impeachment againsf 
lord Mordaunt, upon charges of so little public moment, thai 
they may be suspected of having chiefly had in view the 
assertion of this important privilege.^ It was never called 
in question from this time ; and indeed they took care during, 
the remainder of this reign that it should not again be en- 
dangered by a paucity of precedents.^ 

1 Pari. Uist. 347. regard to the liberty of the subject ; and 

2 The lords refused to commit the earl from this time we do uot find the vague 
of Clarendon OQ a general impeachment and unintelligible accusations, whether 
of high-treason ; and, in a conference of treason or misdemeanor, so usual in 
with till' lower house, denied the author- former proceedings of parliament. Pari, 
ity of the precedent in Strafford's case, Hist. 387. A protest was signed by Duck- 
which was pressed upon them. It is re- ingham, Albemarle, Bristol, Arlington, 
mark.tble Uiat the managers uf this con- and others of their pai-ty, including 
ference for the commons vindicated the three bishops (Cosins. Croft, and another), 
first proceedings of the long parliament, against the refusal of their house to com- 
which shows a considerable change in mit Clarendon upon the general charge, 
their tone since IGGl. They do not, how- A few, on the other hand, of whom lloUig 
ever, seem to have urged — what is an is the only remarkable name, protested 
apparent distinction between the two against the bill of banishment. 
precedents — that the commitment of "The most fatal blow" (says .lames) 
StrntTord was on a verbal request of Fym " the king gave himself to his power and 
'u the name of the commons, without al- prerogative was when he sought aid from 
leging any special matter of treason, and the house of commons to destroy the carl 
couseiiuently irregular and ilU^gal ; while of Clarendon : by that he put that house 
the lyth article of Clarendon's impeach- again in mind of their impeaching privi- 
ment charges him with betraying the lege, which had been wrested out of their 
king's counsels to his enemies ; which, hands by the restoration ; and when min- 
however untrue, evidently amounted to isters found they were like to be left to 
treason within the statute of Edward the censure of parliament, it made them 
III.; so that the objection of the lords have a greater attention to court an in- 
extended to committifig any one for terest there than to pursue that of their 
treason upon impeachment without all princes, from whom tiieyhrped not for 
the particularity required in an indict- so sure a support.'' Life of .iames, 59.3. 
ment. This showed a very commendable The king, it is said, came rather slowlj 



134 CABAL MINISTRY, Chap. XL 

The periocl between the fall of Clarendon in 1607 and the 
conimeiiccment of lord Dauby's administnitioii in 1G78 is 
generally reckoned one of the most disgrac^eful in the annals 
Cabal of our monarchy. This was the age of what is 

ministry. usuully denominated the Cabal administration, 
from the five initial letters of sir Thomas CHfford, first 
commiss\''/ner of the treasury, afterwards lord C litford and 
high-treasurer ; the earl of ArlingLon, secretary of state ; 
the duke of Bu_ckingliam ; lord Aaliley, chancellor of the 
exchequer, afterwards earl of Shaftesbury and lord chan- 
cellor ; and, lastly, the duke of Lauderdale. Yet, though 
the counsels of these persons soon became ex- 
oomprehen- trcmcly pcrnicious and dishonorable, it must be 
Bion iiiiu admitted that the first measures after the banish- 

Indulgeuce , , . , • , ,, . 

ment or Olarendon, both m domestic and loreigu 
policy, were highly praiseworthy. Bridgeman, who suc- 
ceeded the late chancellor in the custody of the great seal, 
with the assistance of chief baron Hale and bishop Wilkins, 
and at the instigation of Buckingham, who, careless about 
every religion, was from humanity or politic motives friendly 
to the indulgence of all, laid the foundations of a treaty with 
the non-conformists, on the basis of a comprehension lor the 
presbyterians, and a toleration for the rest.^ They had 
nearly come, it is said, to terms of agreement, so that it was 
thought time to intimate their design in a speech from the 
throne. But the spirit of 16G2 was still too powerful in the 
commons ; and the friends of Clarendon, whose administra- 
tion this change of counsels seemed to reproach, taking a 
warm part against all indulgence, a motion, that the king be 
desired to send for such persons as he should think fit to 
make proposals to him in order to. the uniting of his protes- 
tant subjects, was negatived by 176 to 70.^ They proceeded, 

into the measure of impeachment ; but their support of Clarendon. Burnet, ibid 

became afterwards .so e.ager as to give the i'epys's Diary, 21st Dec. 1667. And he 

attorney-general. Finch, positive orders had al.so deeper motives. 

to be active in it, observing him to be '- Pari. Ilist. 421. Ralph, 170. Carte's 

silent. Carte's Ormond, ii. 353. Buck- Life of Ormond, ii. 332. Sir Thomas Lit- 

ingham had made the liing great prom- tleton spoke in favor of the couiprelieu- 

ises of what the commons would do, in sioa, as did Seymour and Waller; all of 

case he would sacrifice Cl.arendon. them enemies i>t i Clarendon, and probably 

1 Ken net, 2^3. 300. Burnet. Baxter, connected with the Buckingham faction: 

23. The (le.sign was to act on the piin- but the church party was much too strong 

ciple of the declaration of 1600, so that for them. Pepys says the commons were 

presbyteriiin ordinations should pass sub furious against the project; it was s;ud 

modo. Tillotson and Stillingfleet were that whoever proposed new laws about 

concerned in it. The king was at this reUgion must do it with a rope about hia 

time exasperated against the bishops for neck. Jan. 10, 1668. This is the first 



CiiA. II. — 1660-73. TRIPLE ALLLiXCE. 135 

by almost an equal majority, to continue the bill of 16G4, for 
suppressing seditious conventicles ; which failed, however, 
for the present, in consequence of the sudden prorogation.^ 

But whatever difference of opinion might at that time 
prevail with respect to this tolerant disposition of -prjpie 
the new government, there was none as to their alliance. 
great measure in external policy, the triple alliance with 
Holland and Sweden. A considerable and pretty sudden 
change had taken place in the temper of the English people 
towards France. Though the discordance of national char- 
acter, and the dislike that seems natural to neighbors, as well 
as in some measure the recollections of their ancient hostility, 
had at all times kept up a certain ill-will between the two, it 
is manifest that before the reign of Charles II. there was not 
that antipathy and inveterate enmity towards the French in 
general which it has since been deemed an act of patriotism 
to profess. The national prejudices, from the accession of 
Elizabeth to the restoration, ran far more against Spain ; 
and it is not surprising that the apprehensions of that am- 
bitious monarchy, which had been very just in the age of 
Philip II., should have lasted longer than its ability or incli- 
nation to molest us. But the rapid declension of Spain after 
the peace of the Pyrenees, and the towering ambition of 
Louis XIV., master of a kingdom intrinsically so much more 
formidable than its rival, manifested that the balance of 
power in ILurope, and our own immediate security, demanded 
a steady opposition to the aggrandizement of one monarchy, 
and a regard to the preservation of the other. These indeed 
were rather considerations for statesmen than for the people ; 
but Louis was become unpopular both by his acquisition of 
Dunkirk at the expense, as it was thought, of our honor, and 
much more deservedly by his shuffling conduct in the Dutch 
war, and union in it with our adversaries. Nothing, there- 
fore, gave greater satisfaction in England tlian the triple 
alliance, and consequent peace of Aix la Chapelle, which 
saved the Spanish Netherlands from absolute conquest, 
though not without important sacrifices.^ 

instance of a triumph obtained by the 1 Pari. Uist. 422. 

shurch over the crown in the house of 2 France retained Lille, Toumay, 

commons. K:ilph observes upon it, " It Douay, Oharleroi, and other places, by 

Ib not for nought that the words church the treaty. The allies were surprised, 

and state are so often coupled together, and not plea.<;ed, at the choice Spain made 

and that the first has so insolently of yielding these towns in order to save 

usurped the precedency of the lo^t." Frauche Comte. Temple's Letcers, 97. 

TOL. II. — C. 10 



136 INTRIGUE WITH FRANCE. Chap. XI 

diaries himself meanwhile by no means partook in thi3 

, . . common iealousy of France. He had, from the 

intnguo . •; •' . , , . 

with time or his restoration, entered into close relations 

France. ^^,jjjj ^j^j^j. pQ^ygj.^ which a short period of hostiUty 

had interrupted without leaving any resentment in his mind. 
It is now known that, while his minister was negotiating at 
the Hague for the triple alliance, he had made overtures for 
a clandestine treaty with Louis, through his sister the duchess 
of Orleans, the Duke of Buckingham, and the French am- 
bassador Rouvigny.^ As the king of France was at first 
backward in meeting these advances, and the letters pub- 
lished in regard to them are very few, we do not find any 
precise object expressed beyond a close and intimate friend- 
ship. But a few words in a memorial of Rouvigny to Louis 
XIV. seem to let us into the secret of the real purpose. 
" The duke of York," he says, " wishes much for this union ; 
the duke of Buckingham the same : they use no art, but say 
that nothing else can reestablish the affairs of this court." ^ 

Charles J I. was not of a temperament to desire arbitrary 
Kin 's de- powcr, either through haughtiness and conceit of 
Biretobe his Station, which he did not greatly display, or 
absolute. through the love of taking into his own hands the 
direction of public affairs, about which he v.as in general 
pretty indifferent. He did not wish, as he told lord Essex, 
to sit like a Turkish sultan, and sentence men to the bow- 
string, but could not bear that a set of fellows should inquire 
into his conduct.* His aim, in fact, was liberty rather than 
power ; it was that immunity from control and censure in 
which men of his character place a great part of their happi- 
ness. For some years he had cared probably very little 
about enhancing his prerogative, content with the loyalty, 
though not quite with the liberality, of his parliament. And 
had he not been drawn, against his better judgment, into the 
war with Holland, this harmony might perhaps have been 
protracted a good deal longer. But the vast expenditure of 
that war, producing little or no decisive success, and coming 

In fact, they were not on good terms with ministers on his return from concluding 

that power; she had even a project, out the triple alliance : Clifford said to a fiiend, 

of spite to Holland, of giving up the Neth- "Well, for all this noise, we must yet 

erlands entirely to France, in exchange have another war with the Dutch hefor* 

forRousiUon, but thought better of it on it be long." Temple's Letters, 123. 

cooler reilection. - Dalrymple, ii. 12 

1 Dalrymple, ii. 5, et post. Temple was 3 Burnet, 
not treated very favorably by most of the 



CriA. II.— lGllO-73. DISCONTENT OF THE KING. 137 

unfortunately at a time when trade was not very thriving, 
and when rents had considerably fallen, exasperated all men 
against the prodigality of the court, to which they might 
justly ascribe part of their burdens, and, with the usual mis- 
calculations, believed that much more of them was due. 
Hence the bill appointing commissioners of public account, 
60 ungrateful to the king, whose personal reputation it was 
likely to affect, and whose favorite excesses it might tend to 
restrain. 

He was almost equally provoked by the license of his 
people's tongues. A court like that of Charles is the natural 
topic of the idle, as well as the censorious. An admin- 
istration so ill conducted could not escape the remarks 
of a well-conducted and intelligent city. There was one 
method of putting an end to these impertinent comments, or 
of rendering them innoxious ; but it was the last which he 
would have adopted. Clarendon informs us that, the king 
one day complaining of the freedom, as to political conversa- 
tion, taken in coffee-houses, he recommended either that all 
persons should be forbidden by proclamation to resort to 
them, or that spies should be placed in them to give informa- 
tion against seditious speakers.* The king, he says, liked 
both expedients, but thought it unfair to have recourse to the 
latter till the former had given fair warning, and directed 
him to propose it to the council ; but here, sir William 
Coventry objecting, the king was induced to abandon the 
measure, much to Clarendon's disappointment, though it 
probably saved him an additional article in his impeachment. 
The unconstitutional and arbitrary tenor of this great minis- 
ter's notions of government is strongly displayed in this little 
anecdote. Coventry was an enlightened and, for that age, an 
upright man, whose enmity Clarendon brought on himself by 
a marked jealousy of his abilities in council. 

Those who stood nearest to the king were not backward 
to imitate his discontent at the privileges of his people and 
their representatives. The language of courtiers and court 
ladies is always intolerable to honest men, especially that of 
Buch courtiers as surrounded the throne of Charles II. It is 
worst of all amidst public calamities, such as pressed vei'y 
closely on one another in a part of his reign — the awful 
pestilence of 1665, the still more ruinous fire of 1666, the 

1 Life of Clarendon, 357. 



138 CHARGES AGAINST THE PAPISTS. Chap. X!, 

Meet burned by the Dutch in the Medway next summer. 
No one could reproach the king for outward inactivity ov 
indifference during the great fire. But there were some, as 
Clarendon tells us, who presumed to assure him " that this 
was the greatest blessing that God had ever conierred on 
him, his restoration only excepted ; for the walls and gates 
being now burned and thrown down of that rebellious city, 
which was always an enemy to the ci'own, his majesty would 
never suffer them to repair and build them up again, to be a 
bit in his mouth and a bridle upon his neck ; but would keep 
all open, that his troops might enter upon them whenever 
he thought it necessary for his service, there being no other 
way to govern that rude multitude but by force." ^ This 
kind of discourse, he goes on to say, did not please the king. 
But here we may venture to doubt his testimony; or, if the 
natural good temper of Charles prevented him from taking 
pleasure in such atrocious congratuhations, we may be sure 
that he was not sorry to think the city more in his power. 

It seems probable that this loose and profligate way of 
speaking gave rise, in a great degree, to the suspicion that 
the city had been purposely burned by those who were more ■ 
enemies to religion and liberty than to the court. The 
papists stood ready to bear the infamy of every unproved 
crime ; and a committee of tlie house of commons collected 
evidence enough for those who were already convinced that 
London had been burned by that obnoxious sect. Though 
the house did not proceed farther, there can be no doubt that 
the inquiry contributed to produce that inveterate distrust of 
the court, whose connections with the popish faction were 
half known, half conjectured, which gave from this time au 
entirely new complexion to the parliament. Prejudiced as 
the commons were, they could hardly have imagined the 
catholics to have burned the city out of mere malevolence, 
but must have attributed the crime to some far-spreading 
plan of subverting the estabhshed constitution.^ 

1 Life of Clarendou, 355. their quarters ; and for this the 3d of 

» State Tri:ils, Ti. 807. One of the September following was fixed upon as a 

oddest things connected with this fire lucky day. This is undoubtedly to be 

was, that some persons of the fanatic read in the London Gazette for April 30, 

party had been hanged in April, for a 1666; and it is equally certain that the 

conspiracy to surprise the Tower, murder city was in flames on the 3d of Septem- 

the duke of Albemarle and others, and ber. But. though the coincidence is cu- 

then declare foran equal division of lands, rious. it would be very weak to think it 

&c. In order to effect this, the city wag more than a coincidence, for the same 

to be fired, and the guards secured in reason as applies to the suspicion which 



Cha. II. — 1660-73. FEARS CONCERNING THE ARMY. 139 

The retention of the king's guards had excited some jeal- 
cusy, though no complaints seem to have been made of it in 
parliament ; but the sudden levy of a considerable force in 
1667, however founded upon a very plausible pretext from 
the circumstances of the war, lending credit to these dark 
surmises of the court's sinister designs, gave much greater 
alarm. The commons, summoned together in July, instantly 
addressed the king to disband his army as soon as the peace 
should be made. We learn from the duke of York's private 
memoirs, that some of those who were most respected for 
their ancient attachment to liberty, deemed it in jeopardy at 
this crisis. The earls of Northumberland and Leicester, lord 
HoUis, Mr. Pierpoint, and others of the old parliamentary 
party, met to take measures together. The first of these told 
the duke of York that the nation would not be satisfied with 
the removal of the chancellor, unless the guards were dis- 
banded, and several otlifer grievances redressed. The duke 
bade him be cautious what he said lest he should be obliged 
to inform the king ; but Northumberland replied that it was 
his intention to repeat the same to the king, which he did ac- 
cordingly the next day.^ 

This change in public sentiment gave warning to Charles 
that he could not. expect to reign with as little trouble as he 
had hitherto experienced ; and doubtless the recollection of 
his lather's history did not contribute to cherish the love he 
sometimes pretended for parliaments.^ His brother, more 
reflecting, and more impatient of restraint on royal authority, 
taw with still greater clearness than the king that they could 
only keep the prerogative at its desired height by means of 
intimidation. A regular army was indispensable ; but to 
keep up an army in spite of parliament, or to raise money 

the catholics incurred — that the mere he had done already in the matter cf ac- 

dsstruction of the city could not have counts. For if it be not necessary, it is a 

teen the object of any party, and ttmt king's care and happiness to content bin 

nothiu;; was attempted to mauil'est any people. I doubt, as men will never part 

further design. willingly with their money, unless they 

1 Macpherson's Extracts, 38, 49. Life be well persuaded it will be employed di- 

of James, 426. rectly to those ends for which they gave 

s [ " I am sorry," says Temple, very it, so they will never be .satisfied with a 

wisely aud yirtuously, " his majesty government, unless they see men are 

should meet with anything he did not chosen into offices and employments by 

look for at the openirig of this session of being fit for them, continued for dis- 

paxliameiit ; but confess I uo not see why charging them well, rewarded for ex 

his majesty should [not] not only con- traordinary merit, and punished for re 

sent, but encourage any inquiries or dis- markable faults." March 2, 1668.. Cour 

quisitions they desire to make into the tenay's Lile of Temple, vol. ii. p. 90. — 

tuiscarriages of the late war, ax well as 1846.] 



140 DESIRE TO ADVANCE POPERY. Chap XL 

for its support without parliament, was a very difficalt under- 
taking. It seemed necessary to call in a more powerful arm 
than their own ; raid, by establishing the closest union with 
the king of France, to obtain either military or pecuniary 
succors from him, as circumstances might demand. But 
there was another and not less imperious motive for a secret 
treaty. The king, as has been said, though little likely, from 
the tenor of his life, to feel very strong and lasting impres- 
sions of religion, had at times a desire to testify publicly his 
adherence to the Romish communion. The duke of York 
had come more gradually to change the faith in which he 
was educated. He describes it as the result of patient and 
anxious inquiry ; nor would it be possible therefore to fix a 
precise date for his conversion, which seems to have been not 
fully accomplished till after the restoration.^ He however 
continued in conformity to the church of England, till, on dis- 
covering that the catholic religion exacted an outward com- 
munion, which he had fancied not indispensable, he became 
more uneasy at the restraint that policy imposed on him. 
This led to a conversation with the king, of whose private 
opinions and disposition to declare Ihem he was probably in- 
formed, and to a close union with Clifford and Arlington, 
from whom he had stood aloof on account of their animosity 
against Clarendon. The king and duke held a consulta- 
tion with those two ministers, and witli lord Arundel of 
Wardour, on the 2otli of January, 1669, to discuss the ways 
and methods fit to be taken for the advancement of the 
catholic religion in these kingdoms. The king spoke ear- 
nestly, and with tears in his eyes. After a long deliberation 
it was agreed that there was no better way to accomplish 
this purpose than through France, the house of Austria being 
in no condition to give any assistance.^ 

1 He tells us himself that it began by and he was confident, he said, that who- 

his reading a book written by a learned soever reads those two books, with atten 

bishop of the church of England to clear tion and without prejudice, would be of 

her from schism in ieaTing the Roman the same opiuion. Lite of James, i. 629, 

communion, which had a contrary effect The duchess of York embraced the same 

on him; especially when, at the said creed as her husband, and, as he tells us, 

bishop's desire, he read an answer to it. without knowledge of his sentiments, but 

This made him inquisitive about the one year before her death in 1670. She 

grounds and manner of the Reformation, left a paper at her death, containing the 

After kis return, Heylin's History of the reasons for her change. See it in Kennet, 

Reformafion, and the prefice to Hooker's 320. It is plain that she, as well as tha 

Ecclesiastical Polity, thoroughly con- duke, had been influenced by the Ro- 

vinced him that neither the church of mani/ing tendency of some Anglican di 

England, nor Calvin, nor any of the re- vines. 

formers, had power to do what they did ; 2 Macpherson, 50. Life of James, 414 



\ 



Cha. 11.-1000-73. SECRET TREATY WITH FRANCE. 141 

The famous secret treaty, which, though believed on pretty 
good evidence not long after the time, was first secret treaty 
actually brouglit to light by Dalryraple about lialf "^ I'^'O- 
a century since, began to be negotiated very soon after thia 
consultation.^ We find allusions to the king's projects in one 
of Ills letters to the duchess of Orleans, dated 22(1 March, 
1669."'^ In another, of June 6, the methods he , , . . 
was adopting to secure himself in this perilous ^ ' 
juncture appear. He was to fortify Plymouth, Hull, and 
Portsmouth, and to place them in trusty hands. The fleet 
was under the duke, as lord admiral; the guards and their 
officers were thought ill general well atfected; ^ but his great 
reliance was on the most Christian king. He stipulated for 
200,000/. annually, and for the aid of GOOO French troops."* 
In return for such important succor, Charles undertook to 
serve his ally's ambition and wounded pride against the 
United Provinces. These, when conquered by the French 
arms, with the cooperation of an English navy, were already 
shared by the royal conspirators. A part of Zealand fell to 
the lot of England, the remainder of the Seven Provinces 
to France, with an understanding that some compensation 
should be made to the prince of Orange. In the event of 

» De Witt was apprised of the intrigue ffiuvres de Louis XIV., vi. 476. It is sin- 
between France and England as e.arly as gular that Hume should have slighted 80 
April, 1G!j9, through a Swedish a^ent at well-authenticated a fact, eTea before 
Paris. Temple, 179 Temple himself, in Dalrjmple's publication of the treaty; 
the course of that year, became convinced but I suppose he had never heard of Pri- 
that the king's views were not those of mi's book [Yet it had been quoted by 
his people, and retiects severely on his Bolingbroke, Dissertation on Parties, Let- 
conduct in a letter. December 24, 1G09, ter iv.. who alludes also to •' other proofs, 
p. 20). In September, 1670, on his sud- which have not seen the light." And, in 
den recall from the Hague, De Witt told the ' Letters on the Study of History,' 
him hissuspicionsof a clandestine treaty : Lett, vii., he is rather more explicit about 
241. He was received on his return '• the private relations 1 have read for- 
coldly by Arlington, and almost with merly, drawn up by those who were no 
ri.iene.ss by Clitl'ord : 244. They knew enemies to such designs, and on the au- 
he would never concur in the new prnj- thority of those who were parties to 
ects. liut in 1682, during one of the them."] The original treaty has lately 
intervals when Charles was playing false been published by Dr. Lingard, from lord 
with his brother Louis, the latter, in re- Clifford's cabinet. (Dalrymple had only 
venge, let an abbe Primi, iu a history of given a rough draught from the depot &t 
the Dutch war, publish an account of the Versailles, drawn by sir Hichard Dealing 
whole secret treaty, under the name of for the French court. The variations are 
Count de St. Jlajolo. This book was im- not very material.] 
mediately suppressed at the instance of - Dalrymple, ii. 22. 
the Knglish ambassador; and Primi was 3 Dalrymple, 23. Life of James, 442. 
sent for a short time to the Bastile. But * The tenor of the article leads me to 
a pamphlet, published in London, just conclude that these troops were to be 
after the revolution, contains extracts landed in England at all events, in order 
from it. Dalrymple, ii. 80. Somcrs to secure the public tranquillity, withoui 
Tracts, viii. 13 State Tracks. temi>. W. waiting foif any diiturba nee. 
111., vol. i. p. 1. Uarl. Misu., ii 387. 



142 DIFFERENCES AS TO EXECUTION Cfap. XL 

any new rights to the Spanish monarchy accruing to the 
most Christian king, as it is worded (that is, on the death of 
the king of Spain, a sickly child), it was agreed that Eng- 
land shouiJ assist him with all her force by sea and land, but 
at his own expense ; and should obtain not only Ostend and 
Minorca, but, as far as the king of France could contribute 
to it, such parts of Spanish America as she should choose to 
conquer.^ So strange a scheme of partitioning that vast in- 
heritance was never, I believe, suspected till the publication 
of the treaty, though Bolingbroke had alluded to a pre- 
vious treaty of partition between Louis and the emperor 
Leopold, the complete discovery of which has been but lately 
made.*^ 

Each conspirator, in his coalition against the protestant 

faith and liberties of Europe, had splendid objects 

between in view ; but those of Louis seemed by far the 

Charles and niore probable of the two and less liable to be de- 

liOUlS as to rnpi • r> 

the mode of feated. The full completion of their sclieme would 
t8 execution, j^g^yg reunited a great kingdom to the catholic 
religion, and turned a powerful neighbor into a dependent 
pensioner. But should this fail (and Louis was too sagacious 
not to discern the chances of failure), he had pledged to him 
the assistance of an ally in subjugating the republic of Hol- 
land, which, according to all human calculation could not 
withstand their united efforts ; nay, even in those ulterior 
projects which his restless and sanguine ambition had ever 
in view, and the success of which would have realized, not 
indeed the chimera of an universal monarchy, but a suprem- 
acy and dictatorship over Europe. Charles, on the other 

* P. 49. Austrian cabinet understood this ; and 

* Bolingbroke has a remarkable pas- proposed that they should exchange their 
■age as to this in his Letters on History shares. Finally, however, it was con- 
(Letter vii.): it may be also alluded to eluded on the king's terms, except that 
by others. The full details, however, aa he was to take Sicily instead of Milan. 
well as more authentic proofs, were re- One article of this treaty was, that Louis 
served, as I believe, for the publication should keep what he had conquered in 
of Uiuvres de Louis XIV., where they Flanders; in other words, the terms of 
will be found in vol. ii. 403. The pro- the treaty of Aix la Chapelle. The rati- 
posal of Louis to the emperor, in 1667, fications were exchanged 29th Feb. 1668. 
was, that France should have the Pays Louis represents himself as more induced 
Bas, Franche Comte, Milan, Naples, the by this prospect than by any fear of the 
ports of Tuscany, Navarre, and the Phil- triple alliance, of wiiich he speaks slight- 
ippiae Islands ; Leopold taking all the ingly, to conclude the peace of Aix la 
rest. The obvious drift of this was, that Chapelle. He thought that he should 
France should put herself in possession acquire a character for moderation which 
of an enormous increase of power and might be serviceable to him " dans leg 
territory, leaving Leopold to fight as he grands accroissemens que ma fortuus 
could for Spain and America, which were pourroit recevoir." Vol. ii. p. 369. 

not likely to submit peaceablv. The 



Cha. II. — 1660-73. OF SECRET TREATY. "143 

hand, besides that he had no other return to make for the 
necessary protection of France, was impelled by a personal 
hatred of tlie Dutch, and by the consciousness that their 
commonwealth was the standing reproach of arbitrary power, 
to join readily in the i)lan for its subversion. But, looking 
first to his own objects, and perhaps a little distrustful of hia 
ally, he pressed that his profession of the Roman catholic re- 
ligion should be the first measure in prosecution of the 
treaty ; and that he should immediately receive the stipulated 
200,000/., or at least a part of the money. Louis insisted 
that the declaration of war against Holland should precede. 
This difference occasioned considerable delay ; and it was 
chiefly with a view of bringing round her brother on this 
point that the duchess of Orleans took her famous journey to 
Dover in the spring of 1670. Yet, notwithstanding her in- 
fluence, which passed for irresistible, he persisted in adhering 
to the right reserved to him in the draft of the treaty of 
choosing his own time for the declaration of his religion ; and 
it was concluded on this footing at Dover, by Clifford, Arun- 
del, and Arlington, on the 22d of May, 1670, during the visit 
of the duchess of Orleans.^ 

A mutual distrust, however, retarded the further progress 
of this scheme, one party unwilling to commit himself till he 
should receive money, the other too cautious to run the risk 
of throwing it away. There can be no question but that the 
king of France was right in urging the conquest of Holland 
as a preliminary of the more delicate business they were to 

1 Dalr^-mple, 31-57. James gives a have been if the private treaty first 
different account of this; and intimates agreed on had not been altered." The 
that Henrietta, whose visit to Dover he French court, liowever, was evidently 
had for this reason been much against, right in thinking that, till the conquest 
prevailed on the king to change his rcso- of Holland should be achieved, the dec- 
lution, and to begin with the war. He laration of the king's religion would only 
gained over Arlington and Clifford. The weaken him at home. It is gratif) ing to 
duke told them it would quite defeat the find the heroic character of our glorious 
catholic design, because the king must deliverer displaying itself among these 
run in debt, and be at the mercy of his foul conspiracies. The prince of Orange 
parliament. They answered that, if the came over to Kngland in IGTO. He was 
war succeeded, it was not much matter then very young; .and his uncle, who was 
what people suspected. P 450. This really attached to him, would have gladly 
shows that they looked on force as neces- associated him in the design ; indeed it 
sary to compass the design, and that had been agreed that he was to possess 
the noble resistance of the Dutch, under part of the United Provinces in sovpr. 
the prince of Orange, was that which eignty. But Colbert writes that the 
frustrated the whole conspiracy. "The king had found him so zealous a Dutch- 
duke," it is again said, p. 4.j3, " was in man and protest;int, that he could not 
his own judgment against entering into trust him with any part of the secret, 
this war before his majesty's power and He let him know, however, a-s we learn 
authority in England hail been better from Burnet, 382, that he had hiiuself 
fixed aad less precarious, as it would embraced the Kcmish faith 



141 SECRET TREATY WITH FRANCE. Chap. XL 

manage in England ; and, from Charles's subsequent be- 
havior, as well as his general fickleness and love of ease, 
there seems reason to believe that he would gladly have re- 
ceded from an undertaking of which he must every day have 
more strongly perceived the difficulties. He confessed, in 
fact, to Louis's ambassador, that he was almost the only man 
in his kingdom who liked a French alliance.-' The change 
of religion, on a nearer view, appeared dangerous for himself 
and impracticable as a national measure. He had not dared 
to intrust any of his protestant ministers, even Buckingham, 
whose indifference in such points was notorious, with this 
great secret ; and, to keep them the better in the dai-k, a 
mock negotiation was set on foot with France, and a pre- 
tended treaty actually signed, the exact counterpart of the 
other except as to religion. Buckingham, Shaftesbury, and 
Lauderdale were concerned in this simulated treaty, the 
negotiation for which did not commence till after the original 
convention had been signed at Dover.^ 

The court of France, having yielded to Charles the point 
about which he had seemed so anxious, had soon the mortifi- 
cation to discover that he would take no steps to effect it. 
They now urged that immediate declaration of his religion 
which they had for very wise reasons not long before dis- 
suaded. The king of England hung back, and tried so many 
excuses that they had reason to suspect his sincerity ; not 
that in fact he had played a feigned part from the beginning, 
but, his zeal for popery having given way to the seductions 
of a voluptuous and indolent life, he had been led, with the 
good sense he naturally possessed, to form a better estimate 
of his resources and of the opposition he must encounter. 
Meanwhile the eagerness of his ministers had plunged the 
nation into war with Holland, and Louis, having attained his 
principal end, ceased to trouble the king on the subject of re- 
ligion. He received large sums from France during the 
Dutch war.* 

This memorable transaction explains and justifies the 
strenuous opposition made in parliament to the king and duke 
of York, and may be reckoned the first act of a drama which 

1 Dalrymplc, 57. with Buckingham. But Dalrymp'e'i 

2 P. 68. Life of James, 444. In this authority seems far better in ttiis In- 
work it is said that eveu the duchess of stance. 

Orleans had no knowledge of the real 3 Dalrymple, 84, &c. 
treaty ; aud that the other originated 



Oha X— 1G60-73. DESIGN TO RE-ESTABLISH POPERY. 145 

ended in the revolution. It is true that the precise terms of 
this treaty were not authentically known : but there can be 
no doubt that those who from this time displayed an insuper- 
able jealousy of one brother, and a determined enmity to the 
other, had proofs enough for moral conviction of their deep 
conspiracy with France against religion and liberty. This 
suspicion is implied in all the conduct of that parliamentary 
opposition, and is the apology of much that seems violence 
and faction, especially in the business of the popish plot and 
the bill of exclusion. It is of importance also to observe 
that James II. was not misled and betrayed by false or fool- 
ish counsellors, as some would suggest, in his endeavors to 
subvert the laws, but acted on a plan long since concerted 
and in which he had taken a principal share. 

It must be admitted that neither in the treaty itself, nor in 
the few letters which have been published by Dalrymple, do 
we find any explicit declaration either that the catholic relig- 
ion was to be establislied as the national church or arbitrary 
power introduced in England. But there are not wanting 
strong presumptions of this design. The king speaks, in a 
letter to his sister, of finding means to put the proprietors of 
church lands out of apprehension.^ He uses the expression, 
" retablir la religion catholique ; " which, though not quite 
unequivocal, seems to convey more than a bare toleration or 
a personal profession by the sovereign.^ He talks of a ne- 
gotiation with the court of Rome to obtain the permission of 
having mass in the vulgar tongue and communion in both 
kinds as terms that would render his conversion agreeable to 
his subjects.^ He tells the French ambassador that not only 
his conscience, but the confusion he saw every day increasing 
in his kingdom to the diminution of his authority, impelled 
him to declare himself a catholic ; which,.besides the spii'itual 
advantage, he believed to be the only means of restoring the 
monarchy. These passages, as well as the precautions taken 
in expectation of a vigorous resistance from a part of the 
nation, appear to intimate a formal reestablishracnt of the 
catliolic church ; a measure connected, in the king's appre- 
hension, if not strictly with arbitrary power, yet with a very 

1 Dalrymple, 23. religion, towards -which he had alwayg 

2 P. 52. The reluctance to let the beea disposed, aad which waa hardly a 
duke of Buckinsh.im into the secret secret at court. 

Beems to prove th;it more Wiia meant 3 Pp. 62, 84 
than a toleration of the lloman catholic 



146 FRESH SEVERITIES Chap XI 

material enhancement of his prerogative. For the profession 
of an obnoxious faith by the king, as an insulated person, 
would, instead of strengthening his authox'ity, prove the 
greatest obstacle to it, as, in the next reign, turned out to be 
the case. Charles, however, and the duke of York deceived 
themselves into a confidence that the transition could be ef- 
fected with no extraordinary difficulty. The king knew the 
prevailing laxity of religious principles in many about his 
court, and thought he had reason to rely on others as secretly 
catholic. Sunderland is mentioned as a young man of talent, 
inclined to adopt that religion.^ Even the earl of Orrery ib 
spoken of as a catholic in his heart.^ The duke, who con- 
versed more among divines, was led to hope, from tlie strange 
language of the high-church party, that they might readily 
be persuaded to make what seemed no long step, and come 
into easy terms of union.* It was the constant policy of the 
Romish priests to extenuate the differences between the two 
churches, and to throw the main odium of the schism on the 
Calvinistic sects. And many of the Anglicans, in their ab- 
horrence of protestant non -conformists, played into the handt 
of the common enemy. 

The court, however, entertained great hopes from the de- 
pressed condition of the dissenters, whom it was 
bcventies intended to bribe with that toleration under a 
dSsTnters. catholic regimen which fliey could so little expect 
from the church of England. Hence the duke of 
York was always strenuous against schemes of comprehen- 
sion, which would invigorate the protestant interest and pro- 
mote conciliation. With the opposite view of rendering a 
union among protestants impracticable, the rigorous episcopa- 
lians were encouraged underhand to prosecute the non-con 
formists.* The duke of York took pains to assure Owen, ar 
eminent divine of the independent persuasion, that he looked 
on all persecution as an unchristian thing, and altogether 
against his conscience.^ Yet the court promoted a renewal 
of the temporary act passed in 1664 against conventicles, 
which was reinforced by the addition of an extraordinary 

1 Dalrymple, p. 81. religion to choose, and went to church 

2 P. 33. for company's sake." Life of James, p. 

3 " The generality of the church of 442. 

England men was not at that time very * Life of James, p. 442. 

averse to the catholic religion ; many 6 Macphersoa's Extracts, p. 61. 

tUat went under that name had their 



Cha. II — 1G60-73. AGAINST DISSENTERS. 147 

proviso, " That all clauses in the act should be construed 
most largely and beneficially for suppressing conventicles, 
and for the justification and encouragement of all persons to 
be en-ployed in the execution thereof.^ Wilkins, the most 
honest of the bishops, opposed this act in the house of lords, 
notwithstanding the king's personal request that he would be 
Bilent.^ Sheldon, and others who, like him, disgraced the 
church of England by their unprincipled policy or their pas- 
sions, not only gave it their earnest support at the time, but 
did all in their power to enforce its execution.^ As the king's 
temper was naturally tolerant, his cooperation ^n this severe 
measure w^ould not easily be understood without the expla- 
nation that a knowledge of his secret policy enables us to 
give. In no long course of time the persecution was relaxed, 
the imprisoned ministers set at liberty, some of the leading 
dissenters received pensions, and the king's declaration of a 
general indulgence held forth an asylum from the law under 
the banner of prerogative.'* Though this is said to have pro- 
ceeded from the advice of Shaftesbury, who had no concern 
in the original secret treaty with France, it was completely 
in the spirit of that compact, and must have been acceptabJe 
to the king. 

But the factious, fanatical, republican party (such were the 
usual epithets of the court at the time, such have ever since 
been applied by the advocates or apologists of the Stuarts) 
had gradually led away by their delusions that parliament of 
cavaliers ; oi-, in other words, the glaring vices of the king, 
and the manifestation of designs against religion and liberty, 

1 22 Car. 2. c. 1. Kennet, p. 306. The own time, wherein he largely commem- 

zeal in the commons against popery oi-ates the archbishop's zeal in molest- 

tended to aggravate this persecution of ing the dissenters, and praises him for 

the dissenters. They liad been led by defeating the scheme of comprehension. 

some furious clergymen to believe the P. 25. 1 observe, that the late excellent 

absurdity tliat there was a good under- editor of Burnet has endeavored to slido 

Standing between the two parties. in a word for the primate (note on vol. i. 

a Burnet, p. 272. p. 243), on the authority of that history 

3 Baxter, pp. 74, 86. Kennet, p. 311. by bi.shop Parker, and of Sheldon's Life 
Bee a letter of Sheldon, written at this in the IJiograpiiia Britanuica. It is lam- 
time, to the bishops of his province, entable to rest on such proofs. I should 
urging them to persecute the non-con- certainly not have expected that, in Mag- 
formi.sts. Harris's Life of Chflrles II., dalun college, of all places, the name of 
p. 106. Proofs also are given by this Parker would have been held in honor ; 
author of the manner in which some, and as to the Biographia, laudatory as it 
«uch as Lauiplugh and Ward, responded is of primates in general (save Tillotson, 
to their primate's wishes. whom it depreciates), I find, on refer- 

Sheldon found a panegyrist quite ence, that its praise of Sheldon's virtues 

worthy of him in bis chaplain Parker, is grounded on the authority of biii ept 

afterwards bishop of Oxford. This nota- taph in Croydon church. 
ble person has left a Latin history of his * Baxter. 87. 



148 DUTCH WAR. Chap- XI 

Iiad dispossessed tlicra of a confiding loyalty which, though 
highly dangerojs from its excess, had always been rather 
ardent than servile. The sessions had been short, and the 
intervals of repeated prorogations much longer than usual : 
a policy not well calculated for that age, where the growing 
discontents and suspicions of the people acquired strength by 
the stoppage of the regular channel of complaint. Yet the 
house of commons, during this period, though unmanageable 
on the one point of toleration, had displayed no want of confi- 
dence in the king nor any animosity towards his administra- 
tion ; notwithstanding the flagrant abuses in the expenditure 
which the parliamentary commission of public accounts had 
brought to light, and the outrageous assault on sir John Cov- 
entry, a crime notoriously perpetrated by persons employed 
by the court, and probably by the king's direct order.-^ 

The war with Holland at the beginning of 1672, so repug- 
„ , ^ nant to English interests, so unwarranted by any 

Dutch war. .=■ .„ ' ..,..•' •' 

provocation, so miamously piratical in its com- 
mencement, so ominous of further schemes still more dark 
and dangerous, finally opened the eyes of all men of integ- 
rity. It was accompanied by the shutting up of the ex- 
chequer, an avowed bankruptcy at the moment of beginning 
an expensive war,^ and by the declaration of indulgence, or 
suspension of all penal laws in religion : an assertion of pre- 
rogative Avhich seemed without limit. These exorbitances 
were the more scandalous that they happened during a very 
long prorogation. Hence the court so lost the confidence of 
the house of commons that, w'ith all the lavish corruption of 
the following period, it could never regain a secure majority 

1 This is asserted by Burnet, and seems but this was never paid till the latter 

to be acknowledged by the duke of York, part of William's reign. It may be con 

The court endeavored to mitigate the ef- sidcred as the beginning of our national 

feet of the bill brought into the commons debt. It seems to have been intended to 

in consequence of Coventry's injury; and follow the shutting up of the exchequer 

60 far succeeded, that, instead of a par- with a still more unwarrantable stretch 

tial measure of protection for the mem- of pow.r, by granting an injunction to 

bers of the house of commons, as origi- the creditors who were suing the bankers 

nally designed, (which seemed, I suppose, at law. According to North (Examen, 

to carry too marked a reference to the pp. 38, 47), lord-keeper Bridgman resigned 

particular transaction,) it was turned the great seal, rather than comply with 

into a general act, making it a capital this ; and Shaftesbury himself, who suc- 

felony to wound with intention to maim ceeded him, did not venture, if I under- 

or disfigure. But the name of the Coven- stand the passage rightly, to grant an 

try act has always clung to this statute, absolute injunction. The promise of in- 

Parl. Hist. 461. terest for their money seems to have been 

- The king promised the bankers in- given instead of tills more illegal and 

terest at six per cent., instead of the violent remedy, 
money due to them from the exchequer; 



Cha. n. — 1660-73. DECLAKATION OF INDULGENCE. 149 

on any important question. The superiority of what wag 
called the country party is referred to the session of Febru- 
ary, 1673, in which they compelled the king to recall his 
proclamation suspending the penal laws, and raised a barrier 
against the encroachments of popery in the test act. 

The king's declaration of indulgence had been projected 
by Shaftesbury in order to conciliate or lull to Declaration 
sleep the protestant dissenters. It redounded, in of indui- 
its immediate effect, chiefly to their benefit ; the ^^""^^ 
catholics already enjoying a connivance at the private exer- 
cise of their religion, and the declaration expressly refusing 
them public places of worship. The plan was most laudable 
in itself, could we separate the motives which prompted it, and 
the means by which it was pretended to be made effectual. 
But in the declaration the king says, " We think ourselves 
obliged to make use of that supreme power in ecclesiastical 
matters which is not only inherent in us, but hath been de- 
clared and recognized to be so by several statutes and acts of 
parliament." '• We do," he says, not long afterwards, " de- 
clare our will and pleasure to be, that the execution of all 
and all manner of penal laws in matters ecclesiastical, against 
whatsoever sort of non-conformists or recusants, be immedi- 
ately suspended, and they are hereby suspended." He men- 
tions also his intention to license a certain number of places 
for the religious worship of non-conforming protestants.^ 

It was generally understood to be an ancient prerogative 
of the crown to dispense with penal statutes in favor of 
particular persons, and under certain restrictions. It was 
undeniable that the king might, by what is called a " noli 
prosequi," stop any criminal prosecution commenced in his 
courts, though not an action for the recovery of a pecuniary 
penalty, which, by many statutes, was given to the common 
informer. He might, of course, set at liberty, by means of 
a pardon, any person imprisoned, whether upon conviction 
or by a magistrate's warrant. Thus the operation of penal 
statutes in religion might, in a great measui'e, be rendered 
ineffectual by an exercise of undisputed prerogatives ; and 
thus, in fact, the catholics had been enabled, since the ac- 
cession of the house of Stuart, to withstand the crushing 
Beverity of the laws. But a pretension, in explicit terms, 
to suspend a body of statutes, a command to magistrates 

1 Pari. nist. 515. Eenaet, 313. 



150 DECLARATION OF INDULGENCE. Chaf. XI 

not to put them in execution, arrogated a sort of absolute 
power which no benefits of the indulgence itself (had they 
even been less insidiously offered) could induce a lover of 
constitutional privileges to endure.^ Notwithstanding the 
affected distinction of temporal and ecclesiastical matters, it 
was evident that the king's supremacy Avas as much capable 
of being bounded by the legislature in one as in the other, 
and that every law in the statute-book might be repealed 
by a similar proclamation. Tb?. house of commons voted 
that the king's prerogative in matters ecclesiastical does 
opposed by "ot extend to repeal acts of parliament, and ad- 
pariiament, drcsscd the king to recall his declaration. Whether 
from a desire to protect the non-conformists in a toleration 
even illegally obtained, or from the influence of Bucking- 
ham amo'ig some of the leaders of opposition, it appears 
from the debates that many of those, who had been in 
general most active against the court, resisted this vote, 
which was carried by 168 to IIG. The king, in his answer 
to this address, lamented that the house should question his 
ecclesiastical power, which had never been done before. 
This brought on a fresh rebuke, and, in a second address, 
they positively deny the king's right to suspend any law. 
" The legislative power," they say, " has always been ac- 
knowledged to reside in the king and two houses of parlia- 
ment." The king, in a speech to the house of lords, com- 
plained much of the opposition made by the commons, and 
found a majority of the former disposed to support him, 
thouo-h both houses concurred in an address against the 
and with- growth of popery. At length, against the advice 
drawn. of the bolder part of his council, but certainly 

with a just sense of what he most valued, his ease of mind, 
Charles gave way to the public voice, and withdrew his 
declai-ation.^ 

1 Bridgman, the lord-keeper, resigned Pepys, some years before, that he feared 
the great seal, according to Burnet, be- some would try for extending the tolera- 
cause he would not put it to the declara- tion to papists; but the sober party 
tion of indulgence, and was succeeded by would rather be without it than have it 
Shaftesbury. on those terms. Pepys's Diary, Jan. 31, 

2 Pari. Hist. 517. The presbyterian 1608. Pari. Hist. 546, 561. Father Or- 
party do not appear to have supported leans says that Ormond, Arlinjiton, and 
the declaration — at least Birch spoke some others, advised the king to comply; 
against it: Waller, Seymour, sir Robert the duke and the rest of the council urg- 
Howard in its favor. Baxter says the ing him to adhere, and Shaftesbury, who 
non-conformists were divided in opinion had been the first mover of the project, 
as to the propriety of availing themselves pledging himself for its success : there 
of the declaration. P. 99 Birch told being a party for the king among the 




^ /^^.^ 



Cha. II. — 1G60-T3. TEST ACT. 151 

There was, indeed, a line of policy indicated at this tinoe 
which, though intolerable to the bigotry and passion of the 
house, would best have foiled the schemes of the ministry ; 
a legislative repeal of all the penal statutes both against the 
catholic and the protestant dissenter, as far as regarded the 
exercise of their religion. It must be evident to any im- 
partial man that the unrelenting harshness of parliament, 
from whom no abatement, even in the sanguinary laws 
against the priests of the Romish church, had been obtained, 
had naturally and almost irresistibly driven the members of 
that persuasion into the camp of prerogative, and even fur- 
nished a pretext for that continual intrigue and conspiracy 
which was carried on in the court of Charles II., as it had 
been in tliat of his father. A genuine toleration would have 
put an end to much of this, but, in the circumstances of that 
age, it could not have been safely granted without an exclu- 
sion fiom those public trusts which were to be conferred by a 
sovereign in whom no trust could be reposed. 

The act of supremacy in the first year of Elizabeth had 
imposed on all accepting temporal as well as ecclesiastical 
offices an oath denying the spiritual jurisdiction of the pope. 
But though the refusal of this oath when tendered incurred 
various penalties, yet it does not appear that any were at- 
tached to its neglect, or that the oath was a previous qual- 
ification for the enjoyment of office, as it was made by a 
subsequent act of the same reign for sitting in the house of 
commons. It was found also by experience that persons 
attached to the Roman doctrine sometimes made use of 
strained constructions to reconcile the oath of supremacy to 
their faith. Nor could that test be offered to 

Test let 

peers, who were excepted by a special provision. 
For these several reasons a more effectual security against 
popish counsellors, at least in notorious power, was created 
by the famous test act of 1673, which renders the reception 
of the sacrament according to the rites of the churcli of 
England, and a declaration renouncing the doctrine of tran- 
subslantiation, preliminary conditions without which no tem- 
poral office of trust can be enjoyed.^ In this fundamental 

commons, and a force on foot enough to round, provoked at tlic king's want of 

daunt tlie other side. It was suspected steadiness, and especiiilly at his giTing 

that the women interposed, and prevailed up the point about issuing writs ia the 

on the king to withdraw liis declaration, recess of parliament. 

Upon this Shaftesbury turned short i 25 Car. 2, c. 2. Burnet, p. 490. 

vol.. II. — C. 11 



4- 



152 TEST ACT. Chap. XI. 

article of faith no compromise or equivocation would be 
admitted by any member of tlie church of Rome. And, 
as the obligation extended to the highest ranks, this reached 
the end for wliich it was immediately designed ; compelling 
not only the lord-treasurer Clifl'ord, the boldest and most 
dangerous of that party, to retire from public business, but 
ihe duke of York himself, whose desertion of (he protestant 
:;hurch was hitherto not absolutely undisguised, to quit the 
post of lord-admiral.^ 

It is evident that a test might have been framed to exclude 
(he Roman catholic as effectually as the present without 
bearing like this on the protestant non-conformist. But, 
though the preamble of the bill, and the whole history of 
the transaction, show that the main object was a safeguard 
against popery, it is probable that a majority of both houses 
liked it the better for this secondary effect of shutting out 
the presbyterians still more than had been done by previous 
statutes of this reign. There took place, however, a remark- 
able coalition between the two parties ; and many v/ho had 
always acted as high-churchmen and cavaliers, sensible at 
last of the policy of their common adversaries, renounced a 
good deal of the intolerance and bigotry that had character- 
ized the present parliament. The dissenters, with much 
prudence or laudable disinterestedness, gave their support 
to the (est act. In return, a bill was brought in, and after 
some debate passed to the lords, repealing in a considerable 
degree the persecuting laws against their worship.^ The 
upper house, perhaps invidiously, returned it with amend- 
ments more favorable to the dissenters, and insisted upon 
them after a conference.' A sudden prorogation very soon 

1 The test act began in a resolution, chitel Grey, a member of the commons for 
February 23, 1G73, that all who refuse thirty years; but his notes, though col- 
to take the oaths and receive the sacra- lectively most valuable, are sometimes 
ment according to the rites of the church so brief and ill expressed, that it is hardly 
of England shall be incapable of all possible to make out their meaning. The 
public employments. Pari. Ilist. 556. court and church party, or rather some 
The court party endeavored to oppose the of them, seem to have much opposed 
declaration against transubstantiation, this bill for the relief of protestant dis- 
but of course in vain. Id. 531, 592. senters. 

The khig had pressed his brother to 3 Commons' Journals, 28th and 29th 
receive the sacrament in order to avoid March, 1673. Lords' Journals, 24th and 
suspicion, which he absolutely refused; 29th March. The lords were so slow 
and this led, he says, to tlie test. Life of about this bill that the lower house, 
James, p. 482. But his religion was long knowing an adjournment to be in con- 
pretty well known, though he did not templation, sent a message to quicken 
cease to conform till 1G72. them, according to a practice not unu- 

2 Pari. Hist. 526-585. These debates sual in this reign. Perhaps, on an atten- 
are copied from those published by An- tive consideration of the report on the 



Oha. II. — 1G60-73. FALL OF THE CABAL. 153 

put an end to this bill, which was as unacceptable to the 
court as it was to the zealots of the church of England. It 
had been intended to follow it up by anotlier, excluding all 
who should not conform to the established church from serv- 
ing in the house of commons.^ 

It may appear remarkable that, as if content with these 
provisions, the victorious country party did not remonstrate 
against the shutting up of the excliequer, nor even wage any 
direct w^ar against the king's advisers. They voted, on the 
contrary, a large supply, whicli, as they did not choose ex- 
plicitly to recognize the Dutch war, was expressed to be 
granted for the king's extraordinary occasions.^ This mod- 
eration, which ought at least to rescue them from the charges 
of faction and violence, has been censured by some as servile 
and corrupt ; and would really incur censure if they had not 
attained the great object of breaking the court measures by 
other means. But the test act, and their steady 
protestation against the suspending prerogative, Shaftesbury 
crushed the projects and dispersed the members ^""j '"^ 
of the cabal. The king had no longer any minis- 
ter on whom he could rely ; and, with his indolent temper, 
seems from this time, if not to have abandoned all hope of 
declaring his change of religion, yet to have seen both that 
and his other favorite projects postponed without much re- 
luctance. From a real predilection, from the prospect of 
gain, and partly, no doubt, from some distant views of arbi- 
trary power and a catholic establishment, he persevered a 
long time in clinging secretly to the interest of France ; but 
his active cooperation in the schemes of 1669 was at an end. 
In the next session, of October, 1673, the commons drove 
Buckingham from the king's councils ; they intimidated Ar- 
lington into a change of policy ; and, though they did not 
succeed in removing the duke of Lauderdale, compelled him 
to confine himself chiefly to the affairs of Scotland.^ 

confcrencc(March29), it may appear that the committeo on the test act, that a 

the lords' amendinents had a teudeucy to clause should be introduced rendering 

let in popish, rather than to favor prot- non-conformists incapable of sitting in 

estaut dissenters. ParKer says that this the house of commons. This was lost by 

act of indulgence was defeated by his 163 to 107; but it was resolved that a 

• great hero, archbishop Sheldon, who pro- distinct bill should be brouf^ht in for that 

posed that the non-conformists should purpose. 10th March, 1073. 

acknowledge the war against Charles I. 2 Kennet, p. 318. 

to be unlawful. Hist, sui tempoiis, p. 3 Commons' Journals, 20th Jan. 1674 

203 of the translation. Pari. Uist. 608, 625, 649. Uurnct. 
1 It was proposed, as an instructioQ lu 



i 



154 DAJfBY'S ADMINISTKATION Chap. XH. 



CHAPTER XII. 

Karl of Dan by 's Administration — Opposition in the CommoBS — Frequently comtpl 

— Characler of Lord Danby — Connection of the Popular Party with France — Iti 
Motives on both Sides — Doubt as to their Acceptance of Money — Secret Treaties 
of the King with France — Fall of Danby — Ilis Impeachment — Questions arising 
on It — His Commitment to the Tower — Pardon pleaded in Bar — Votes of Bishops 

— Abatemeiitof Impeachments by Dissolution — Popisli Plot — Coleman's Letters 

— Godfrey's Death — Injustice of Judges on the Trials — Parliament dissolved — 
Exclusion of Duke of York proposed — Schemes of Shaftesbury and Monmouth — 
Unsteadiness of the Kii);^ — Expedients to avoid the Exclusion — Names of AVhig 
and Tory — New Council formed by Sir William Temple — Long Prorogation of 
Parliament — Petitions and Addresses — Violence of the Commons — Oxford Par- 
liament — Impeachment of Commoners for Treason constitutional — Fitzharria 
impeached — Proceedings against Shaftesbury and his Colleagues — Triumph of 
the Court — Forfeiture of Cliarter of London — And of other places — Projects of 
Lords Russell and Sidney — Their Trials — High Tory Principles of the Clergy — 
Passive Obedience — Some contend for Absolute Power — Filmer — Sir George 
Mackenzie — Decree of Uniyersity of Oxford — Connection with Louis broken off 

— King's Death. 

The period of lord Danby's administration, from ] 673 to 
Earl of Dan- 1678, was full of cliicanery and dissimulation on 
by's admin- the king's side,/of increasing suspiciousness on that 
i6tra ion. ^^ ^j^^ commons. Forced by the voice of parlia- 
ment and the bad success of his arms into peace with Hol- 
land, Charles struggled hard against a cooperation with her 
in the great confederacy of Spain and the empire to resist 
the encroachments of France on the Netherlands. Such 
was in that age the strength of the barrier fortresses, and so 
heroic the resistance of the prince of Orange, that, notwith- 
standing the extreme weakness of Spain, there was no mo- 
ment in that war when the sincere and strenuous interven- 
tion of England would not have compelled Louis XIV. to 
accept the terms of the treaty of Aix la Chapelle. It was 
the treacherous attachment of Charles II. to French inter- 
ests that brought the long congress of Nimeguen to an un- 
fortunate termination ; and, by surrendering so many towna • 
of Flanders as laid the rest open to future aggression, gav« 
rise to the tedious struggles of two more wars.^ 

1 Temple's Memoirs. 



Cha. U. — 1G73-85. CORKUPTION OF PARLIAMENT. 155 

In the behavior of the house of commons during this 
period, previously at least to the session of 1678, 
there seems nothing Avhich can incur much repre- in tue 
hension from those who reflect on the king's char- commons, 
acter and intentions ; unless it be that they granted supplies 
ratlier too largely, and did not sufficiently provide against 
the perils of the time. But the house of lords contained, 
unfortunately, an invincible majority for the court, ready to 
frustrate any legislative security for public hberty. Thus 
the habeas corpus act, first sent up to that house in 1674, 
was lost there in several successive sessions. The commons, 
theiefore, testified their sense of public grievances, and kept 
alive an alarm in the nation, by resolutions and addresses, 
which a phlegmatic reader is sometimes too apt to consider 
as factious or unnecessary. If they seem to have dwelt 
more, in some of these, on the dangers of religion, and less 
on those of liberty, than we may now think reasonable, it is 
to be remembered that the fear of popery has always been 
the surest string to touch for effect on the people ; and that 
the general clamor against that religion was all covertly di- 
rected against the duke of York, the most dangerous enemy 
of every part of our constitution. The real vice of ^ 

.I,- ^■ ^ , . , Corruption 

tins parliament was not mtemperance, but corrup- ofthepar- 
tion. Clifford, and still more Danby, were mas- "'"^^'''• 
ters in an art practised by ministers from the time of James 
I. (and which indeed can never be unknown where there 
exists a court and a popular assembly), that of turning to 
their use the weapons of mercenary eloquence by office, or 
blunting their edge by bribery.* Some who had been once 
prominent in opposition, as sir Robert Howard and sir 
Richard Temple, became placemen ; some, like Garraway 
and sir Thomas Lee, while they continued to lead the coun- 
try party, took money from the court for softening particular 
votes ; ^ many, as seems to have been the case with Rcresby, 

1 Burnet says tLat Danby bribed the thei» pensions ; but I observe no one 

less important members instead of the says he did not always TOte with tlie 

leaders which did not answer ko well, court. Purl. Hist. 1137. North admits 

But he seems to have been liberal to all. that great clamor was excited by this dis- 

The parliament lias gained the name of covery ; and well it might. See also Dal- 

the pensioned. In that ot 1G79 sir Ste- rymple, ii. 92. 

phen Fox was called upon to produce an - Burnet barges these two leaders of 

account of the moneys paid to many of opposition with being bribed by the court 

their predecessors. Those who belonged to draw the house into grantiug an enor- 

to the new parliament endeavored to mous supply, as the consideration of 

defend themselves, and gave reasons for passing the test act \ and see Pcpys, Oct 



156 CHARACTER OF DANBY. Chap. XII. 

were won by promises and the pretended friendship of men 
in power.^ On two great classes of questions, France and 
popery, the commons broke away from all management ; nor 
was Danby unwilling to let his master see their indocility on 
these subjects. But in general, till the year 1G78, by dint 
of the means before mentioned, and partly no doubt through 
the honest conviction of many that the king was not likely 
to employ any minister more favorable to the protestant re- 
ligion and liberties of Europe, he kept his ground without 
any insuperable opposition from parliament.^ 

The earl of Danby had virtues as an English minister, 
Character wliicli Served to cxtcnuate some great errors and 
of the earl an entire want of scrupulousness in his conduct, 
^" ^" Zealous against the church of Rome and the ag- 
grandizement of France, he counteracted, while he seemed 
to yield to, the prepossessions of his master. If the policy 
of England before the peace of Nimeguen was mischievous 
and disgraceful, it would evidently have been far more so 
had the king and duke of York been abetted by this minis- 
ter in their tatal predilection for France. We owe to Danby's 
influence, it must ever be remembered, the marriage of prin- 
cess Mary to the prince of Orange, the seed of the revolu- 
tion and the act of settlement — a courageous and disinter- 
ested counsel, which ought not to have proved the source of 
his greatest misfortunes." But we cannot pretend to say 

6, 1666. Sir Robert Howard and sir li.shed; that, if the gOTemment was in 

Richard Temple were said to have gone any danger, it was from those wlio pre- 

OTer to the court in 1670 through similar tended such a mighty zeal for it. On 

inducements. Ralph. Roger Noitli (Ex- finding him well disposed, Danby took 

amen, p. 456) gives an account of the his proselyte to the king, who assured 

manner in which men were brought off him of his regard for the constitution, 

from the opposition, though it was some- and was right loyally believed. Reresby's 

times advisable to let them nominally Memoirs, p. 33. 

continue in it; and mentions Lee, Garra- - " There were two things," says bish- 

way, and Meres, all very active patriots, op Parker, " which, like Circe's cup, be- 

if we trust to the parliamentary debates, witched men and turned them into 

But, after all, neither Burnet nor Roger brutes, viz. popery and French interest 

North are wholly to be relied on as to If men otherwise sober heard them once, 

jiarticular instances ; though the general it was sufRcient to make them run mad. 

fact of an extensive corruption be indis- But, when those things were laid aside, 

putable. • their behavior to his m.ijesty was with a 

1 This cunning, self-interested man, becoming modesty." P. 244. AVhenever 

who had been introduced to the house by the court seemed to fall in with the na- 

lord Russell and lord Cavendish, and was ticnal interests on the two point.%of France 

connected with the country p.arty, tells and popery, many of the country party 

us that Danby sent for him in Feb. 1677, voted with them on other questions, 

and assured him that the jealousies of though more numerous than their own. 

that party were wholly without founda- Temple, p. 458. See, too, Reresby, p. 2-5, 

tion ; that, to his certain knowledge, the et alibi. 

king meant no other than to preserve the >* The king, according to James himself, 

religicm and government by law estab- readily consented to the marriage of thu 



CiiA. n. — 1G73-85 HIS CONDUCT AS MINISTER. 



157 



that he was altogether as sound a friend to the constitution 
of his country as to her national dignity and intere.-ts. I do 
not mean that he wished to render the king absolute. But a 
minister, harassed and attacked in parliament, is tempted to 
desire the means of crushing his op[)oncnts, or at least of 
augmenting his own sway. The miscliievous bill that passed 
the house of lords in 167o, imposing as a test to be taken by 
both houses of pai-Hament, as well as all holding beneficed 
offices, a declaration that resistance to persons commissioned 
by the king was in all cases unlawful, and that they would 
never attempt any alteration in the government in church or 
state, was promoted by Danby, though it might possibly orig- 
inate with others.^ It was apparently meant as a bone of 
contention among the country party, in which presbyterians 
and old parliamentarians were associated with discontented 
cavaliers. Besides the mischief of weakening this party, 
which indeed the minister could not fairly be expected to 
feel, nothing could have been devised more unconstitutional, 
or more advantageous to the court's projects of arbitrary 
power. 



princess, when it was first suggested in 
1G75 ; the (iiffieulty was with her father. 
He give at last a reluctant consent ; and 
the offer was made by lords Arlington 
and Ossory to the prince of Orange, who 
received it coolly. Life of James, 501. 
Temple's Memoirs, p. 397. When he 
came over to England in Oct. 1677, with 
the intention of effecting the match, the 
king and duke wished to defer it till the 
conclusion of the treaty then in negotia- 
tion at NMineguen ; but " the obstinacy 
of the prince, with the assistance of the 
treasurer, who from that time entered 
Into the measures and interests of the 
prince, prevailed upon the flexibility of 
the king to let the niarringe be first agreed 
and concluded." I*. 508. [If we may 
trust Keresby, which is not perhaps al- 
ways the case, the duke of York had hopes 
of marrying the prince.'is Mary to tho 
Dauphin, thus rendering England a prov- 
ince of France. Keresby's Memoirs, p. 
109. — 1S45.] 

1 Kcnnet, p. 332. North's Examen, 
p. 61. Burnet. This test was covertly 
meant against the liomish party, iis well 
as more openly against the dissenters. 
Life of .lames, p. 49"J. Danby set himself 
up as the patron of the church party and 
old cavaliers against the two opposing re- 
ligions, trusting that they were stronger 
in the house of commons. But tho times 



were so changed that the same men haJ 
no longer the same principles, and the 
house would listen to no measures against 
non-conformists, lie propitiated, how- 
ever, the prelates, by renewing the perse- 
cution under the e.xisting laws, which 
had been relaxed by the cabal ministry. 
Baxter. 156, 17'2. Kennet, 331. Neal 
098. Somers Tricts, vii. 336. 

Meanwhile, schemes of comprehension 
were sometimes on foot; and the prelates 
affected to bo desirous of bringing about 
an union ; but Morley and Shi-ldon fru.s- 
trated them all. Ba\ter. 156; Kennet, 
326 ; Parker. 25. The bisliops, however 
were not uniformly intolerant: Croft., 
bishop of Hereford, published, aboul 
1675, a tract that made some noise, en- 
titled The Niikcd Truth, for the purpose 
of moderating differences. It is not writ- 
ten with extraordinary al)ility, but ia 
very candid and well designed, though 
conceding so much as to srandilize his 
brethren. Somers Tr.icts, vii. 26S ; Biogr 
Brit., art. Croft, where the bock is ox 
travagantly overpraised. Croft was one 
of the few bishops who, being then very 
old, advised his clergy to read James II. 'I 
declaration in 1687 ; tliinking, I suppose, 
though in those circumstances errone- 
ously, that toleration was so good a thing, 
it was better to ha^e it irregularly tUaa 
not at all. 



158 



CONNECTION OF POPULAR PAIiTY Ch.U'. XII 



It is certainly possible that a minister who, aware of the 
dangerous intentions of his sovereign or his colleagues, re- 
mains in the cabinet to thwart and countermine them, may 
8erve the public more effectually than by retiring from office; 
but he will scarcely succeed in avoiding some material sac- 
rifices of integrity, and still less of reputation. Danby, the 
ostensible adviser of Charles II., took on himself the just 
odium of that hollow and suspicious policy which appeared 
to the world. We know indeed that he was concerned, 
against his own judgment, in the king's secret receipt of 
money from France, the price of neutrality, both in 1676 
and 1678, the latter to his own ruin.^ Could the opposition, 
though not so well apprized of these transactions as we are, 
be censured for giving little credit to his assurances of zeal 
against that power ; which, though sincere in him, were so 
little in unison with the disposition of the court ? Had they 
no cause to dread that the great army suddenly raised in 
1677, on pretence of being employed against France, might 
be turned to some worse purposes more congenial to the 
king's temper ? ^ 

This invincible distrust of the court is the best apology for 
that which has given rise to so much censure, 
the secret connections fo^-med by the leaders of 
o[)position with Louis XIV., through his ambas- 
sadors Barillon and Rouvigny, about the spring 
of 1678.^ They well knew that the king's designs 



Connection 
of the popu- 
lar party 
with France. 
Its_ motives 
ou'both sides 



1 Cliarles received 500,000 crowns for 
the long prorogation of parliament, from 
Nov. 1(375 to Fob. 1677. In the begin- 
ning of the year 1676 the two kings 
bound themselves by a formal treaty (to 
which Danby and Lauderdale, but not 
Coventry or Williamson, were privy) not 
to enter on any treaties but by mutual 
consent ; and Charles promised, in con- 
sideration of a pension, to prorogue or 
dissolve parliament, if they should at- 
tempt to force such treaties upon him. 
Dalrymjle, p. 99. Danby tried to brealc 
this oSf, but did not hesitate to press the 
French cabinet for the money ; and 
200,000/. was paid. The prince of Or- 
ange came afterwards through Rouvig- 
ny to a knowledge of this secret treaty. 
P. 117. 

- This army consisted of between twen- 
ty and thirty thousand men, as fine 
troops as could be seen (Liie of .James, 
p. 512) — an alarming sight to tliose who 
denied the lawfuluijss of any litaading 



army. It is impossible to doubt, fi-om 
Barillon's correspondence in Dalrymple, 
that the king and duke looked to thia 
force as the means of consolidating the 
royal authority. This was suspected at 
home, and very justly : — "Many well- 
meaning men.'' says Keresby, '' began to 
fear the army now raised was rather in 
tended to awe our own kingdom than to 
war against France, as had at first been 
suggested:" p. 62. And in a former 
passage, p. 57. he positively attributes 
the opposition to the French war in 1678 
to •' a jealousy that the king indeed in- 
tended to raise an army, but never de- 
signed to go on with the war; and, to 
say the truth, .some of the king's own 
party were not very sure of the con- 
trary." 

3 Dalrymple, p. 129. The immediate 
cause of those intrigues was the indigna- 
tion of Louis at the princess Mary's mar- 
riage. That event, which, as we knovt 
from James himself, was very suddunlj 



Cha. II. — J073-85. 



WITH FKANCE. 



159 



against tlieir libei-ties had been planned in concert wiib 
France, and cuuld hardly be rendered effectual without her 
aid in money, if not in arms.^ If they could draw over this 
dangerous ally from his. side, and convince the king of France 
that it was not his interest to crush their power, they would 
at least frustrate the suspected conspiracy, and secure the dis- 
banding of tlie army ; tliough at a great sacrifice of the con- 
tinental policy which they had long maintained, and which 
was truly important to our honor and safety. Yet there 
must be degrees in the scale of public utility ; and, if the 
liberties of the people were really endangered by domestic 
treacliery, it was ridiculous to think of saving Tournay and 
Valenciennes at the expense of all that was dearest at home. 
This is plainly the secret of that unaccountable, as it then 
seemed, and factious opposition, in the year 1G78, which 
cannot be denied to have served the ends of France, and 
thwarted the endeavors of lord Danby and sir William 
Temple to urge on the uncertain and half-reluctant temper 
of the king into a decided course of policy.^ Louis, in fact, 



brought about, took the king of France 
by surprise. Charles apologized for it to 
Barillon, by saying, " I am the only one 
of my party, except my brother." P. 125. 
This, in fact, was the secret of his ap- 
parent relinquishment of French inter- 
ests at Uiffereut times in Jhe latter years 
of his reign : he found it hard to kick 
constantly against the pricks, and could 
employ no minister who went cordially 
along with his predilections. He seems 
too at times, as well as the duke of York, 
to have been seriously provoked .at the 
unceasing encroachments of France, 
which exposed him to so much vexatioa 
at Rome. 

The connection with lords Russell and 
Hollis begin in March, 1678, though 
some of the opposition had been making 
advances to Barillou in the preceding 
November: pp. 129, 131. See also " Copies 
and Extracts of some Letters written to 
liiin from the Earl of Danby," published 
In 1716, whence it appears that Montagu 
Busperted the intrigues of liarillon. and 
the mission of llouvigny, lady Ilussell's 
first-cousin, for the siime purpose, as 
ejirly as Jan. I'i'S, and informed Dauby 
of it: pp. 50, 53, 59. 

1 Courtin, the French amba.ssador 
who preceded Barillou, had been engaged 
through great part of the year 1677 in a 
treaty with Charles for the prorogation 
or dissolution of Parliament. After a 
long chaffering, the sum was fixed at 



2,000,000 livres ; in consideration of 
Avhich the king of England pledged him- 
self to prorogue parliament from Decem- 
ber to April, 1678. It was in conse- 
quence of the subsidy being stopped by 
Louis, in resentment of the princess 
Mary's marriage, that parliament, which 
had been already prorogued till April, 
was suddenly assembled in February. 
Dalrymplc, p. 111. It appears that Cour 
tin had employed French money to bribe 
members of the commons in 1677 with 
the knowledge of Charles, .assigning as 
a reason that Spain and the emperor 
were distributing money on the other 
side. In the course of this negotiation 
he assured Charles that the king of 
France was always ready to employ all 
his forces for the confirmation and aug- 
mentation of the royal authority in Eng- 
land, so that he should always be master 
of his subjects, and not deiond upon 
them. 

- See what Temple says of this, p. 460. 
The king raised 20,000 men in the spring 
of 1678, and seemed ready to go into the 
war ; but all was spoiled by a vote, od 
Clarges's motion, that no money should 
be gninted till satisfaction should b« 
made as to religion. This irritated the 
king so much that he determined to take 
the money which France offered him ; 
and he afterwards almost compelled the 
Dutch to sign the treaty ; so mucll 
against the prince of Grange's incline 



160 MOTIVES OF LOUIS XFV. Chap. XII 

had no desire to see the king of England absolute over his peo- 
ple, unless it could be done so much by his own help as to 
render himself the real master of both. In the estimate of 
kings, or of such kings as Louis XIV;, all limitations of sov- 
ereignty, all coordinate authority of estates and parliaments, 
are not only derogatory to the royal dignity, but injurious to 
the state itself, of which they distract the councils and ener- 
vate the force. Great armies, prompt obedience, unlimited 
power over the national resources, secresy in council, rapid- 
ity in execution, belong to an energetic and enlightened des- 
potism : we should greatly err in supposing that Louis XIV. 
was led to concur in projects of subverting our constitution 
from any jealousy of its contributing to our prosperity. He 
saw, on the contrary, in the perpetual jarring of the kings 
and parliaments, a source of feebleness and vacillation in 
foreign affairs, and a field for intrigue and corruption. It 
was certainly far from his design to see a republic, either in 
name or effect, established in England ; but an unanimous 
loyalty, a spontaneous submission to the court, was as little 
consonant to his interests ; and, especially if accompanied 
with a willing return of the majority to the catholic religion, 
would have put an end to his influence over the king, and 
still more certainly over the duke of York.^ He had long 
been sensible of the advantage to be reaped from a malecon- 
tent party in England. In the first years after the restora- 
tion he kept up a connection with the disappointed common- 
wealth's men, while their courage was yet fresh and unsub- 

tions, that he has often been charged, the duke, to pull down the ministers, 

though unjustly, with having fought and to weaken the orown." P. 512. 

the battle of St. Denis after he kuew In defence of the commons it is to ba 

that the peace was concluded. Danby urged that, if they had any strong sus- 

ftlso, in his Vindication (published in picion of the king's private intrigues 

IGT'J, and again in 1710 — see State with France for some years past, as in 

Trials, ii. G34). lays the blame of dis- all likelihood they had, common pru- 

couraging the king from embarking in dence would teach them to di.strust his 

the war on this vote of the comhions. pretended desire for war with her; and 

And the author of the Life of James II. it is, in fact, most probable that his real 

says very truly that the commons " were object was to be master of a considerable 

in reality more jealous of the king's army. 

power than of the power of France ; for, i The memorial of Blanchard to the 

notwithstanding all their former warm prince of Orange, quoted by Dalrymple, 

addresses for hinderitig the growth of p. 201, contains these words : '• Le roi 

the power of France, when the king had auroit ete bien fiche qu'il ePit etc absolu 

no army, now that he had one they dans ses etats ; I'une de ses plus constan- 

passed a vote to have it immediately tes maximes depnis son retablissement 

disbanded ; and the factious party, ayant ete do le diviser d"avei! son parle- 

which was then prevalent among them, ment, et de so servir tantot de I'un, 

made it their only business to be rid of tantot de I'autre, toujours par argeut 

pour parvenir i ses fins." 



Cha. II. — 1673-85. OF IIOLLIS AND RUSSELL. 161 

dued ; and in the wax* of 16G5 was very nearly exciting in- 
surrections both in England and Ireland.^ These scliemes of 
course were suspended as he grew into closer friendship with 
Charles, and saw a surer method of preserving an ascen- 
dency over the kingdom. But, as soon as the princess Mary's 
marriage, contrary to the king of England's promise, and to 
the phiin intent of all their clandestine negotiations, dis})layed 
his faithless and uncertain character to tlie French cabinet 
they determined to make the patriotism, the passion, and the 
corruption of the house of commons, minister to their resent- 
ment and ambition. 

The views of lord Hollis and lord Russell in this clandes- 
tine intercourse with the French ambassador Avere sincerely 
patriotic and honoralde : to detach France from the king ; to 
crush the duke of York and nopish faction ; to procure the 
disbanding of the army, the dissolution of a corrupted parlia- 
ment, the dismissal of a bad minister.^ They would indeed 
have displayed more prudence in leaving these dark and dan- 
gerous paths of intrigue to the court Avhich was practised 
in them. They were concerting measures with the natural 
enemy of their country, religion, honor, and liberty ; whose 
obvious policy was to keep the kingdom disunited that it 
might be powerless ; who had been long abetting the worst 
designs of our own court, and who could never be expected 
to act against popery and despotism, but for the temporary 
ends of liis ambition. Yet, in the very critical circumstances 
of that period, it was impossible to pursue any course with 
security; and the dangers of excessive circumspection and 

I Ualph, p. 116. CEuvres de Louis traine par M. lo due d'York et par le 

XIV. ii. 204, and v. 67, where we have prand triisorier ; mais dans le fond il 

a curious and characteristic letter of the aiuieroit niieux que la paix le mit en 

kins to d'iistradcs in .Ian. 1602, when he ctat de demeurer en repos, et vetablir ses 

had been provoked by some high Ian- affaires, c'est-i-dire, un bon revenu; et 

guage Clarendon had held about the je crois qu'il ne se soucie pas beaucoup 

right of the Hag. d'etre plus absolu qu'il est. Le due et 

'- The letters ot Barillon in Dalrymple, le tresorier connoissent bien i (jui ils ont 

pp. 134. 13ij. 140, are sufficient proofs of affaire, et craignent d'etre abamlonnes 

this, lie imputes to Danby in one place, par le roi d'Angleterre aux prcmii'rs ob- 

p. 142, the design of making the king stiicles considerables qu'ils trouvcront 

absolute, and .says : "'M. le due d'York au dessein de relever I'autorite royale en 

Be croit perdu pour sa religion, si I'occa- Angleterre." On this passage it may be 

sion presente ne lui sert i soumettre observed that there is re;vson to believe 

I'Angleterre ; c'est une cntreprise fort there wiis no cooperation, but rather a 

hardie, et dont le sucres est fort dou- great distrust, at this time between the 

tfiu.x." Of Charles himself he says, " Ixs duke of York and lord Danby. But 

roi d'.'Vngleterre balance encore i so Barillon had no doubt taken care to iu- 

porter A re.xtrcmitc ; son humeur re- fuse into the minds of tlie opposition 

pugne fort au dessein de changer le those suspicions of that minister s rt> 

gouvernement. li est neaiimoius en- signs. 



162 DOUBTS AS TO ACCEPTANCE OF MONEY CiiAi-. XII. 

adherence to general rules may often be as formidable as 
those of temerity. The connection of the popular party with 
France may very probably have frustrated the sinister inten- 
tions of the king and duke, by compelling the reduction of 
the army, thougli at the price of a great sacrifice of European 
policy.^ Such may be, with unprejudiced men, a sufficient 
apology for the conduct of lord Russell and lord Hi^llis, the 
most public-spirited and high-minded characters of their age, 
in this extraordinary and unnatural alliance. It Avould have 
been unworthy of their virtii" to have gone into so desperate 
an intrigue with no better aim than that of ruinincr lord Dan- 
by ; and of this I think we may fully acquit them. The noble- 
ness of Russell's disposition beams forth in all that Barillon 
has written of their conferences. Yet, notwithstanding the 
plausible grounds of his conduct, we can hardly avoid wishing 
that he had abstained from so dangerous an intercourse, which 
led him to impair, in the eyes of posterity, by something more 
like faction than can be ascribed to any other part of his par- 
liamentary life, the consistency and ingenuousness of his char- 
acter.^ 

I have purposely mentioned lord Russell and lord Hollis 
T, , . . apart from others who were mingled in tiie same 

Doubt as to . i . '^ 

the accept- intrigucs of the French ambassador, both because 
uloneyV ^^^^^ wcre among the first with whom he tampered, 
the popular and bccausc they are honorably distinguished by 
^'^'^ ^' their abstinence from all pecuniary remuneration, 

which Hollis refused, and which Barillon did not presume to 
oflfer to Russell. It appears, however, from this minister's ac- 
counts of the money he had expended in this secret service 
of the French crown, that, at a later time, namely about the 
end of 1680, many of the leading members of opposition, sir 
Thomas Littleton, Mr. Ganaway, Mr. Hampden, Mr. Powle, 
Mr. Sacheverell, Mr. Foley, received sums of 500 or 300 
guineas, as testimonies of the king of France's munificence 
and favor. Among others, Algernon Sidney, who, though 
not in parliament, Avas very active out of it, is more than 
once mentioned. Chiefly because the name of Algernon 

1 Barillon appears to have favored the - This delicate subject is treated with 

opposition rather than the duke of York, great candor as well as judgment by lord 

who urged the keeping up of the .army. Johu llussell, in his Life of WiUiau Lord 

This wiis also the great object of the liussell. 
king, who very reluctantly disbanded it 
inJau. 1979. Dalrymple,"207, &c. 



Cha. II. — 1(573-85. BY POrULAR PARTY. 163 

Sidney had been associated with the most stern and elevated 
virtue, this statement was received with great reluctance ; and 
many have ventured to call the truth of these pecuniary 
gratifications in question. This is certainly a bold surmise ; 
though Barillon is known to have been a man of luxurious 
and expensive habits, and his demands for more money on ac» 
count of tlie English court, which continually occur in his cor- 
respondence with Louis, may lead to a suspicion that he would 
be in some measure a gainer by it. Tliis, however, might 
possibly be the case without actual peculation. But it must 
be observed that there are two classes of those who are al- 
leged to have received presents through his hands : one, of 
such as were in actual communication with himself; another, 
of such as sir John Baber, a secret agent, had prevailed upon 
to accept it. Sidney was in the first class ; but as to the 
second, comprehending Littleton, Hampden, Saeheverell, in 
whom it is, for diiferent reasons, as difficult to suspect pecun- 
iary corruption as in him, the proof is manifestly weaker, 
depending only on the assertion of an intriguer that he had 
paid them the money. The falsehood either of Baber or 
Barillon would acquit these considerable men. Nor is it to 
be reckoned improbable that persons employed in this clan- 
destine service should be guilty of a fraud, for which they 
could evidently never be made responsible. We have indeed 
a remarkable confession of Coleman, the famous intriguer 
executed for the popish plot, to this effect. He deposed in 
his examination before the house of commons, in November, 
1678, that he had received last session of Barillon 2500^. to 
be distributed among members of parliament, which he had 
converted to his own use.^ It is doubtless possible that Cole- 
man, having actually expended this money in the manner in- 
tended, bespoke the favor of those whose secret he kept by 
taking the discredit of such a fraud on himself. But it is 
also possible that he spoke the truth. A similar uncertainty 
hangs over the transactions of sir John Baber. Nothing in 
the parliamentary conduct of the above-mentioned gentlemen 
in 1680 corroborates the suspicion of an intrigue with France, 
whatever may have been the case in 1G78. 

I must fairly confess, however, that the decided bias of ray 
own mind is on the affirmative side of this question ; and 
that principally because I am not so much struck ns some 

> Pari. Hist. 1035 J Dalrymple, 200. 



164 CONDUCT OF SIDNEY. Chap. XII 

have been by any violent improbability in wLat Bai'illon 
t\'rote to his court on the subject. If indeed we were to read 
that Algernon Sidney had been bought over by Louis XIV. 
or Charles II. to assist in setting up absolute monarchy in 
England, we might fairly oppose our knowledge of his inflex- 
ible and haughty character, of his zeal, in life and death, for 
republican liberty. But there is, I presume, some moral dis- 
tinction between the acceptance of a bribe to desert or betray 
our principles, and that of a trifling present for acting in con- 
formity to them. The one is, of course, to be styled corrup- 
tion ; the other is repugnant to a generous and delicate mind, 
but too much sanctioned by the practice of an age far less 
scrupulous than our own, to have carried with it any great 
self-reproach or sense of degradation. It is truly inconceiv- 
able that men of such property as sir Thomas Littleton or 
Mr. Foley should have accepted 300 or 500 guinea ■, the 
sums mentioned by Barillon, as the price of apostasy from 
those political principles to which they owed the esteem of 
their country, or of an implicit compliance Avith the dictates 
of France. It is sufficiently discreditable to the times in 
which they lived that they should have accepted so pitiful a 
gratuity ; unless indeed we sliould in candor resort to an hy- 
pothesis which seems not absurd, that they agreed among 
themselves not to offend Louis, or excite his distrust, by a 
refusal of this money. Sidney indeed was, as there is reason 
to think, a distressed man ; he had formerly been in connec- 
tion with the court of France,^ and had persuaded himself 
that the countenance of that power might one day or other 
be afforded to his darling scheme of a commonwealth ; he 
had contracted a dislike to the prince of Orange, and conse- 
quently to the Dutch alliance, from the same governing 
motive ; is it strange that one so circumstanced should have 



1 Louis XIV. tells us that Sidney had sessed either practical good sense or • 

made proposals to France in 1G06 for an just appreciation of the public interests; 

insurrection, and asked 100,000 crowns to and his influence over the Avliig party 

effect it, which was thought too much appears to have been entirely mischievous, 

for an experiment. He tried to persuade tliougli lie w.is not ouly a much better, 

the ministers that it was against the in- man than Shaftesbury, which is no high 

terest of France that England should praise, but than the greater number of 

continue a nionarcliy. (Euvres de Louis tliat faction, as they must be called, not- 

XIV., ii. 204. [Sidney's partiality to withstanding their services to liberty. A 

France displays itself in his Letters to Tract on Love by Algernon Sidney, in 

Saville, in 1679, published by llollis. Somers"s Tracts, viii. G12, di>iplays an al- 

They evince also a blind credulity in the most Platonic elegance and delicacy of 

popish plot. The whole of Sidney's con- mind. — 1845.1 
duct is inconsistent with his having pos- 



Cha. n.— 1673-85. SFX'RET TREATIES WITH FRANCE. 1(35 

accepted a small gratification from the king of France which 
implied no dereliction of his duty as an Englishman, or any 
sacrifice of political integrity ? And I should be glad to be 
informed by the idolaters of Algernon Sidney's name, what 
we know of him from authentic and contemporary sources 
which renders this incredible. 

France, in the whole course of these intrigues, held the 
game in her hands. Mistress of both parties, she 
might either embarrass the king through parlia- treaties of 
ment, if he pretended to an indei)endent course of "^.",'^;?s 

1 • 11 11111 w>"i i ranee. 

l)ohcy, or cast away tiie latter when he should re- 
turn to his former engagements. Hence, as early as May, 
1678, a private treaty was set on foot between Charles and 
Louis, by which the former obliged himself to keep a neu- 
trality, if the allies should not accept the terms offered by 
France, to recall all his troops fiom Flanders within two 
months, to disband most of his army, and not to assemble 
his parliament for six months : in return he was to receive 
6,000,000 livres. Tliis was signed by the king himself on 
May 27 ; none of his ministers venturing to affix their 
names.^ Yet at this time he was making outward profes 
sions of an intention to carry on the war. Even in this 
secret treaty, so thorough was his insincerity, he meant to 
evade one of its articles, that of disbanding his troops. In 
this alone he was really opposed to the wishes of France ; 
and her pertinacity in disarmmg him seems to have been the 
chief source of those capricious changes of his disposition 
which we find for three or four years at this period.^ Louis 
again appears not only to have mistrusted the king's own 
inclinations after the prince of Orange's marriage, and his 
ability to withstand the eagerness of the nation for war, 
but to have apprehended that he might become ab-olute by 
means of his army, without standing indebted for it to his 
ancient ally. Li this point therefore he faithfully served the 
popular party. Charles used every endeavor to evade this 
condition ; whether it were that he still entertained hopes 
of obtaining arbitrary power through intimidation, or that, 

1 Dalrj-mple, 16U. or does he think that a matter to i e done 

2 Ilis exclamation at Barillon's press- with 8000 men?" Temple says, '"lie 
ing the reduction of the army to 8000 secnieil at this time (May, 107S) more re- 
men is well known. '• God's fish 1 are all solved to enter into the war than I ba] 
the king of Franco's promises to make ever before seen or thouc;ht him." 

me mister of my subjects come to this? 



166 ■ FALL OF DANBY Chap. Xn 

dreading the violence of the house of commons, and ascrib- 
ing it rather to a repubhcan conspiracy than to his own 
misconduct, he looked to a miHtary force as his security. 
From this motive we may account for his strange proposal 
to the French king of a league in support of Sweden, by 
which he was to furnish fifteen ships and 10,000 men at the 
expense of France, during three years, receiving six millions 
for the first year, and four for each of the two next. I;Ouis, 
as is highly probable, betrayed this project to the Dutch gov- 
ernment, and thus frightened them into that hasty signature 
of the treaty of Nimeguen, which broke up the confederacy, 
and accomplished the immediate objects of his ambition. No 
longer in need of the court of England, he determined to 
punish it for that duplicity which none resent more in others 
than those who are accustomed to practise it. He refused 
Charles the pension stipulated by the private treaty, alleging 
that its conditions had not been performed ; and urged on 
Montagu, with promises of indemnification, to beti-ay as much 
as he knew of that secret, in order to ruin lord Danby.^ 
The ultimate cause of this minister's fall may thus be de- 
duced from the best action of his life ; though it 
Dauby. cusucd immediately from his very culpable weak- 

^each^ent. "^^^ '^^ aiding the king's inclinations towards a 
sordid bargaining with France. It is well known 
that the famous letter to Montagu, empowering him to make 
an offer of neutrality for the price of 6,000,000 livres, was not 
only Avritten by the king's express order, but that Charles 
attested this with his own signature in a postscript. This 
bears date five days after an act had absolutely passed to 
raise money for carrying on the war ; a circumstance worthy 
of particular attention, as it both puts an end to every pre- 
text or apology which the least scrupulous could venture to 
urge in behalf of this negotiation, and justifies the whig party 
of England in an invincible distrust, an inexpiable hatred, of 
60 perfidious a cozener as filled the throne. But, as he was 
beyond their reacli, they exercised a constitutional right in 
the impeachment of his responsible minister. For responsible 
he surely was ; though, strangely mistaking the obligations 
of an English statesman, Danby seems to fancy in his printed 
defence that the king's order would be sufiicient warrant to 
justify obedience in any case not literally unlawful. "I 

1 Dalrymple, 178, et post 



CiiA. II. — 1G73-85. HIS IMPEACHMENT. 167 

believe," he says, " there are very few subjects but what 
would take it ill not to be obeyed by their servants; and 
their servants might as justly expect their master's protection 
for their obedience." The letter to Montagu, he asserts, 
" was written by the king's command, upon the subject of 
peace and war, wherein his majesty alone is at all times sole 
judge, and ought to be obeyed not only by any of his min- 
isters of state but by all his subjects."^ Such were, in that 
age, the monarchical or tory maxims of government, which 
the impcaciiment of this minister contributed in some meas 
ure to overthrow. As the king's autliority for the letter 
to Montagu was an undeniable fact, evidenced by his own 
handwriting, the conmions in impeaching lord Danby went 
a great way towards establishing the principle that no min- 
ister can shelter himself behind the throne by pleading 
obedience to the orders of his sovereign. He is considered, 
in the modern theory of the constitution, answerable for the 
justice, the honesty, the utility of all measures emanating 
from the crown, as well as for tlieir legality ; and thus the 
executive administration is rendered subordinate, in all great 
matters of policy, to the superintendence and virtual control 
of the two iiouses of parliament. It must at the same time 
be admitted that, through the heat of honest indignation and 
some less worthy passions on the one hand, through uncer- 
tain and crude principles of constitutional law on the other, 
this just and necessary impeachment of the earl of Danby 
was not so conducted as to be exempt from all reproach. 
The charge of high-treason for an offence manifestly amount- 
ing only to misdemeanor, witli tiie pui'pose, not perhaps of 
taking the life of the accused, but at least of procuring some 
punislnnent beyond the law,'- with the strange mixture of 
articles, as to which there was no presumptive proof, or 
which wei-e evidently false, such as concealment of the pop- 
ish plot, gave such a character of intemperance and faction 
to these proceedings as may lead superficial readers to con- 
demn them altogether.* The compliance of Danby with the 

1 Memoirs relating to the Impeach- is to be reniemberecl that they were ex- 

n^ent of the Earl of Danby, 1710, p. 151, asperated by the pardon he had clandes- 

227. state Trials, vol. xi. tinely obtiiined, and pleaded in bar o( 

■•i The violence of the next houi-e of their impeiichiiient. 

commons, who refused to acquiesce in '^ The iuipeacliuient was carried by 179 

Danby's bani.shnient, to which the lords to ll'j, Dec. 19. A motion, Dec. 21, to 

had changed their bill of attainder, may leave out the word traitorously, was lost 

seem to render it very doubtful whether by 179 to I'll, 
kbey would have spared his lii'e. But it 

VOL. II. — C. 12 



168 QUESTIONS ON DANDY'S IMPEACHMENT, Chap. XU. 

king's corrupt policy had been highly culpable, but it waa 
not unprecedented; it was even conformable to the court 
standard of duty ; and as it sprang from too inordinate a 
desire to retain power, it would have found an appropriate 
and adequate chastisement in exclusion from office. We 
judge perhaps somewhat more favorably of lord Danby than 
his contemporaries at that juncture were warranted to do; 
but even then he was rather a minister to be pulled down 
than a man to be severely punished. His one great and 
undeniable service to the protestant and English interests 
phould have palliated a multitude of errors. Yet this was 
the mainspring and first source of the intrigue that ruined 
him. 

The impeachment of lord Danby brought forward several 
Questions material discussions on that part of our constitu- 
arising on tjonal law which should not be passed over in this 
peachment. place. 1. As soon as the charges presented by 
Danby's ^jr^Q commons at the bar of the upper house had 

commit- , ^^ 

menttotho been read, a motion was made that the earl should 
Tower. withdraw ; and another afterwards that he should 

be committed to the Tower; both of which were negatived 
by considerable majorities.^ This refusal to commit on a 
charge of treason had created a dispute between the two 
houses in the instance of lord Clarendon.^ In that case, how- 
ever, one of the articles of impeachment did actually contain 
an unquestionable treason. But it was contended with much 
more force on the present occasion, that if the commons, by 
merely using the word traitorously, could alter the character 
of offences which, on their own showing, amounted but to 
misdemeanors, the boasted certainty of the law in matters 
of treason would be at an end ; and unless it were meant 
that the lords should pass sentence in such a case against the 
received rules of law, there could be no pretext for their 
refusing to admit the accused to bail. Even in Strafford's 
case, which was a condemned precedent, they had a general 
charge of high-treason upon which he was committed ; while 
the offences alleged against Danby were stated with par- 
ticularity, and upon the face of the articles could not be 
brought within any reasonable interpretation of the statutes 

1 Lords' Journals, December 26. 1678. 2 State Trials, vi. 351, et post. Hat- 
Eighteen peers entered their protests ; sell's Frecedents, iv. 176. 
Halifax, Essex, Shaftesbury, &c. 



Cha. II. — 1673-85. COMJIITMENT TO THE TOWER. 1G9 

relating to treason. The house of commons faintly urged a 
remarkable clause in the act of Edward III., which provides 
that, in case of any doubt arising as to the nature of an 
oflfence charged to amount to treason, the judges should refer 
it to the sentence of parliament ; and maintain that this in- 
vested the two houses with a declaratory power to extend 
the penalties of the law to new offences which had not been 
clearly provided for in its enactments. But, though some- 
thing like this might possibly have been in contemplation 
with the framers of that statute, and precedents were not 
absolutely wanting to support the construction, it was su 
repugnant to the more equitable principles of criminal law 
which had begun to gain ground, that even the heat of faC' 
tion did not induce the commons to insist upon it. They 
may be considered, however, as having carried their point; 
for, though the prorogation and subsequent dissolution of the 
present parliament ensued so quickly that nothing more was 
done in the matter, yet, when the next house of commons 
revived the impeachment, the lords voted to take Danby into 
custody without any further objection,^ It ought not to be 
inferred from hence that they were wrong in refusing to 
commit ; nor do I conceive, notwithstanding the later prece- 
dent of lord Oxford, that any rule to the contrary is es- 
tablished. In any future case it ougiit to be open to debate 
whether articles of impeachment pretending to contain a 
charge of high-treason do substantialiy set fortli overt acts of 
such a crime ; and if the house of lords sliall be of opinion, 
either by consulting the judges or otherwise, that no treason 
is specially alleged, they should, notwithstanding any tech- 
nical words, treat the offence as a misdemeanor, and admit 
the accused to bail.^ 

1 Lords' Journals, April 16. that the lords did not intend to extend 

2 " The lord privj' sea.1, Anglesea, in a the points of withdrawing and cominit- 
couference between the two houses," said ti..g to general impeachments without 
" that in the transaction of this atfair special matter alleged ; else tln-y did not 
were two gre.it points gained by this know how many might be picked out of 
house of commons: the first was, that their house on a sudden." 
imiieachmeuts made by the commons in Shaftesbury said, indecently enough, 
one p;irli.iuieat continued from session to that they were as willing to be rid of the 
ge.ssion, and parliament to parliament, earl of Danby as the commons, and cav- 
notwitnsfiuding prorogations or dissolu- illed at the distinction between general 
tions : the other point was, that in cases and special impeachments. Commons' 
of impeachments, upon special matter Journals, April 12, 1679. On the Ini- 
shown, if tlie modesty of the party directs peachment of Scroggs for treason, in the 
him not to withdraw the lords admit next parliament, it was moved to commil 
that of ri'^iit they ought to order him to him ; but the previous question was car- 
withdraw, and that afterwards he ought ried. and he was admitted to bail ; doabt* 
to be committed But he understood less because no sufficient matter WU 



170 PARDON PLEADED IN BAR. Chap. XR 

2. A still more important question aro?e as to the king's 
Pardon right of pardon upon a parliamentary irapeach- 

pieaded ment. Dan by, who had absconded on the unex- 

° '^^' pected revival of these proceedings in the new 

parliament, finding that an act of attainder was likely to pass 
against him in consequence of his flight from justice, sui'- 
rendered himself to the usher of the black rod ; and, on 
being required to give in his written answer to the charges 
of the commons, pleaded a pardon secretly obtained from the 
king, in bar of the prosecution.^ The commons resolved 
that the pardon was illegal and void, and ought not to be 
pleaded in bar of the impeachment of the commons of Eng- 
land. They demanded judgment at the lords' bar against 
Danby, as having put in a void plea. They resolved, with 
that culpable violence which distinguished this and the suc- 
ceeding house of commons, in order to deprive the accused . 
of the assistance of counsel, that no commoner whatsoever 
should presume to maintain the validity of the pardon 
pleaded by the earl of Danby, without their consent, on 
pain of being accounted a betrayer of the liberties of the 
commons of England.^ -They denied the right of the bish- 
ops to vote on the validity of this pardon. They demanded 
the appointment of a committee from both houses to regulate 
the form and manner of proceeding on this impeachment, 
as well as on that of the five lords accused of participation 
in the popish plot. The upper house gave some signs of a 
vacillating and temporizing spirit, not by any means unac- 
countable. They acceded, after a first refusal, to the propo- 
sition of a committee, though manifestly designed to encroach 
on their own exclusive claim of judicature.^ But they came 
to a resolution that the spiritual lords had a right to sit and 
vote in parliament in capital cases, until judgment of death 
shall be pronounced.* The commons of course protested 
against this vote ; ^ but a prorogation soon dropped the cur- 

■llpged. Twenty peers protested. Lords' « May 13. Twenty-one peers were 

Journals, Jan. 7. 1881. entered as dissentient. The rommoiis 

1 Lord.s' Journals, April 25. Pari, inquired whether it were intended by 

Hist. 1121, &c. this that the bishops should vote on the 

■■2 Lords" Journals, May 9, 1679. pardon of Danby, which the upper house 

3 Lords' Journals, May 10 and 11. declined to answer, but said they could 

After the former vote 50 peers, out of 107 not vote on the trial of the five pi>pisb 

who appear to have been present, entered lords. May 15, 17. 27. 

their dissent; and another, the earl of 5 See the report of a committee in 

Leicester, is known to have voted with Journals, May 26; or Hatsell's Freco- 

the minority. This unusual stren!!;th of dents, iv. 374. 

opposition no doubt produced the change 

next day. 



Cha. If. — 1673-85. VOTES OF BISHOPS. 171 

tain over their differences ; and Danby's impeachment was 
not acted upon in the next parliament. 

There seems to be no kind of pretence for objecting to 
the votes of the bishops on such preliminary votcsof 
questions as may arise in an impeachment of ''"'si'ops- 
treason. It is true that ancient custom has so far engrafted 
the provisions of the ecclesiastical law on our constitution 
that they are bound to withdraw when judgment of life or 
death is pronounced ; though even in this they always did 
it with a protestation of their right to remain. This, once 
claimed as a jjrivilege of the church, and reluctantly ad- 
mitted by the state, became, in the lapse of ages, an exclu- 
sion and a badge of inferioi'ity. In the constitutions of 
Clareuvlon under Henry II. it is enacted, that the bishops 
and others holding spiritual benefices "in capite" should 
give their attendance at trials in parliament till it come to 
sentence of life or member. This, although perhaps too 
ancient to have authority as statute law, was a sufficient 
evidence of the constitutional usage, where nothing so ma- 
terial could be alleged on the otlier side. And. as the 
original privilege was built upon nothing better than the 
narrow superstitions of the canon law, there was no rea- 
sonable pretext for carrying the exclusion of tlie spiritual 
lords farther tlian certain and constant precedents required. 
Tiiough it was true, as the enemies of lord Danby urged, 
that by voting for the validity of his pardon they would in 
effect determine the whole question in his favor, yet thei-e 
seemed no serious reason, considering it abstractedly from 
party views, why they should not thus indirectly be restored 
for once to a privilege from which the prejudices of former 
ages alone had simt them out. 

The main point in controversy, whether a general or 
special pardon from the king could be pleaded in answer 
to an impeachment of the commons, so as to prevent any 
furtiier proceedings in it, never came to a regular decision. 
It was evident that a minister M'ho had influence enougli to 
obtain such an indemnity might set both houses of parlia- 
ment at defiance ; the pretended responsibility of the crown's 
advisers, accounted the palladium of our constitution, would 
be an idle mockery if not only punishment could be averted 
but inquiry frustrated. Even if the king could remit the 
penalties of a guilty minister's sentence upon impeaclimeut, 



172 PARDON PLEADED IN BAR. Chap. XIl 

it would be much that public indignation should have been 
excited against him, that suspicion should have been turned 
into proof, that shame and repi'oach, irremissible by the 
great seal, should avenge the wrongs of his coimtry. It 
was always to be presumed that a sovereign, undeceived by 
such a judicial inquiry, or sensible to the general voice it 
roused, would voluntarily, or at least prudently, abandon an 
unworthy favorite. Though it might be admitted that long 
usage had established the royal prerogative of granting par- 
dons under the great seal, even before trial, and that such 
pardons might be pleaded in bar (a prerogative indeed 
which ancient statutes, not repealed, though gone into <tisuse, 
or rather in no time acted upon, had attempted to restrain), 
yet we could not infer that it extended to cases of impeach- 
ment. In ordinary criminal proceedings by indictment the 
king was before the court as prosecutor, the suit was in liis 
name ; he might stay the process at his plea&ure by entering 
a " noli prosequi ; " to pardon, before or after judgment, was 
a branch of the same prerogative ; it was a great constitu- 
tional trust, to be exercised at his discretion. But in an 
appeal, that is, an accusation of felony, brought by the in- 
jured party or his next of blood, a proceeding wherein the 
king's name did not appear, it was undoubted that he could 
not remit the capital sentence. The same principle seemed 
applicable to an impeachment at the suit of the commons of 
England, demanding justice from the supreme tribunal of 
the other house of parliament. It could not be denied that 
James had remitted the whole sentence upon lord Bacon. 
But impeachments were so unusual at that time, and the 
privileges of parliament so little out of dispute, that no great 
stress could be laid on this precedent. 

Such must have been the course of arguing, strong on po- 
litical and specious on legal gi'ounds, which induced the com- 
mons to resist the plea put in by lord Danby. Though this 
question remained in suspense on the present occasion, it was 
finally decided by the legislature in the act of settle ment> 
which provides that no pardon under the great seal of Eng- 
land be pleadable to an impeachment of the commons in 
parliament.^ These expressions seem tacitly to concede the 
crown's right of granting a pardon after sentence, which, 
though perhaps it could not well be distinguished ir. point of 

i 13 W. III. c. 2 



Cha. II. — 1673-85. ABATEMENT OF IMPEACHMENTS. 173 

law from a pardon pleadable in bar, stands on a very differ- 
ent footing, as has been observed above, witli respect to con- 
stitutional policy. Accordingly, upon the impeachment of 
the six peers who had been concerned in the rebellion of 
1715, the house of lords, after sentence passed, having come 
to a resolution on debate that the king had a right to reprieve 
in cises of impeachment, addressed him to exercise that pre- 
rogative as to such of them as should deserve hia mercy ; 
and three of the number were in consequence pardoned.* 

3. The impeachment of Danby first brought forward an 
other question of hardly less magnitude, and re- 
markable as one of the few great points in consti- tf'S^h- 
tutional law which have been discussed and finally "^e"'' by 
settled within the memory of the present genera- '^^°" **"' 
tion : I mean the continuance of an impeachment by the 
commons from one parliament to another. Though this has 
been put at rest by a determination altogether consonant to 
maxims of expediency, it seems proper in this place to show 
briefly the grounds upon which the argument on both sidea 
rested. 

In the earlier period of our parliamentary records the bus- 
iness of both houses, whether of a legislative or judicial 
nature, though often very multifarious, was despatched with 
the rapidity natural to comparatively rude times, by men 
impatient of delay, unused to doubt, and not cautious in the 
proof of facts or attentive to the subtleties of reasoning. 
The session, generally speaking, was not to terminate till the 
petitions in parliament for redress had been disposed of, 
whether decisively or by reference to some more permanent 
tribunal. Petitions for alteration of the law, presented by 
the commons and assented to by the lords, were drawn up 
into statutes by the king's council just before the prorogation 
or dissolution. They fell naturally to the ground if the ses- 
sion closed before they could be submitted to the king's 
pleasure. The great change that took place in the reign of 
Henry VI., by passing bills complete in their form through 
the two houses instead of petitions, while it rendered manifest 
to every eye that distinction between legislative and judicial 
proceedings which the simplicity of olden times had half 

1 Pari. Ilist. vii. 283. Mr. I^chmcre, a ment, liad most confidentlj denied this 
very ardent whig, tU«n solicitor-geuenil, prerogative. Id. 233. 
•nd one of ttie managers on the impeach- 



174 ABATEMENT OF IMPEACHMENTS CiiAi.XIL 

concealed, did not affect thi." constitutional principle. At the 
close of a session every bill hen in progress through parlia- 
ment became a nullity, and must pass again through all its 
stages before it could be tendered for the royal assent. No 
sort of difference existed in the effect of a prorogation and a 
dissolution ; it was even maintained that a session made a 
parliament. 

During the fifteenth and sixteenth centuries writs of error 
from inferior courts to the house of lords became far less 
usual than in the preceding age ; and when they occurred, ?is 
eiTor could only be assigned on a point of law appearing on 
the record, they were quickly decided with the assistance of 
the judges. But, when they grew more frequent, and espe- 
cially when appeals from the chancellor, requiring often a 
tedious examination of depositions, were brought before the 
lords, it was found that a sudden prorogation might often 
interrupt a decision ; and the question arose whether writs of 
error, and other proceedings of a similar nature, did not, 
according to precedent or analogy, cease, or, in technical 
language, abate, at the close of a session. An order was 
accordmgly made by the house on March 11, 1G73, that " the 
lords' committees for privileges should inquire whether an 
appeal to this house, either by writ of error or petition, from 
the proceedings of any other court, being depending and not 
determined in one session of parliament, coritinue in statu 
quo unto the next session of parliament, without renewing 
the writ of error or petition or beginning all anew." The 
committee reported on the 29th of March, after misreciting 
the order of refei-ence to them in a very remarkable manner, 
by omitting some words and inter[)olaiing others, so as to 
make it far more extensive than it really was,^ that upon the 
consideration of precedents, which they specify, they came to 
a resolution that " businesses depending in one parliament or 
session of parliament have been continued to the next session 
of the same parliament, and the proceedings thereupon have 
remained in the same state in which they were left when last 
in agitation." The house approved of this resolution, and 
ordered it accordingly.^ 

1 Instead of the words in the order, not in their legislative capacity." The 

" from tlie proceediugs of any other importance of tliis alteration as t« the 

court," the following are inserted, '' or question of impeachuient is obvious, 

any other busiuess wherein their lord- '•' Lords' Jouriiais. 
ships act as ill a court of judicature, aud 



Cha. II. — 1673-85. BY DISSOLUTION. 175 

This resolution was dooisive as to the continuance of ordi- 
nary judicial business beyond the termination of a session. 
It was still open to dispute whether it might not abate by a 
dissolution ; and the peculiar case of impeachment to which, 
after the dissolution of the long parliament in 1G78, every 
one's attention was turned, seemed to stand on different 
grounds. It was referred, therefore, to the committee of 
privileges on the 11th of March, 1G79, to consider whether 
petitions of appeal which were presented to this house in the 
last jjarliainent be still in force to be proceeded on. Next 
day it is referred to the same committee, on a report of the 
matter of fact as to the impeachments of the earl of Danby 
and the five popish lords in the late parliament, to consider 
of the state of the said impeachments and all the incidents re- 
lating thereto, and to report to the house. On the IStii of 
March lord Essex reported from the committee that, " upon 
perusal of the judgment of this house of tiie 29th of March, 
1673, they are of opinion that, in all cases of appeals and writs 
of error, they continue, and are to be proceeded on, in statu 
quo, as they stood at the dissolution of the last parliament, 

without beginning de novo And, upon consideration 

had of the matter referred to their lordships concerning the 
state of the impeachments brought up from the house of 

commons the last parliament, &c they are of 

opinion that the dissolution of the last parliament doth not 
alter the state of the impeachments brought up by the com- 
mons in that parliament. Tiiis report was taken into consid 
eration next day by the house ; and after a debate, which 
appears from the Journals to have lasted some time, after 
the previous question had been moved and lost, it was re- 
solved to agree with the committee.^ 

This resolution became tor some years the acknowledged 
law of parliament. Lord Stafford, at his trial in IGHO, hav- 
ing requested that his council might be heard as to the point 
whether impeachments could go from one parliament to an- 
other, the house took no notice of this question ; though they 
consulted the judges about another which he had put, as tu 
the necessity of two witnesses to every overt act of treason.' 
Lord Danby and chief-justice Scroggs petitioned the lords m 
the Oxford parliament, one to have the charges against him 

I Iiords" Journals. Seventy eight peers * Id. 4th Dec. ICSO. 
were present. 



176 ABATEMENT OF IMPEACHMENTS Chap. XII 

dismissed, the otlier to be bailed ; but neither take the 
objection of an intervening dissolution.^ And lord Danby, 
after the dissolution of three successive parliaments since 
that in which he was impeached, having lain for three years 
in the Tower, when he applied to be enlarged on bail by the 
court of king's bench in 1682, was refused by the judges, on 
the ground of their incompetency to meddle in a parliamen- 
tary impeachment ; though, if the prosecution were already 
at an end, he would have been entitled to an absolute dis- 
charge. On Jefferies becoming chief-justice of the king's 
bench, Danby was admitted to bail.^ But in the pai'liament 
of 1G85, the impeached lords having petitioned the house, it 
was resolved that the order of the 19th of March, 1679, be 
reversed and annulled as to impeachments ; and they were 
consequently released from their recognizances.^ 

The lirst of these two contradictory determinations is not 
certainly free from that reproach which so often contaminates 
our precedents of parliamentary law, and renders an honest 
man reluctant to show them any greater deference than is 
strictly necessary. It passed during the violent times of the 
popish plot; and a contrary resolution would have set at lib- 
erty the five catholic peers committed to the Tower, and en- 
abled them probably to quit the kingdom before a new im' 
peachment could be preferred. It must be acknowledged, at 
the same time, that it was borne out in a considerable degree 
by the terms of the order of 1673, which seems liable to no 
suspicion of answering a temporary purpose ; and that the 
court party in the house of lords were powerful enough to 
have withstood any flagi'ant innovation in the law of parlia- 
ment. As for the second resolution, that of 1685, which re- 
versed the former, it was passed in the very worst of times ; 
and, if we may believe the protest signed by the earl of 
Anglesea and three other peers, with great precipitation an I 
neglect of usual forms. It was not however annulled after 
the revolution ; but, on the contrary, received what may seem 
at first sight a certain degree of confirmation from an order 
of the house of lords in 1690, on the petitions of lords Salis- 

J Lords' Journals, Marcli 24, 1681. The bailed to appear at the lords' bar the first 

very next day the commons sent a mes- day of the then next parliament." Th« 

gage to demand judgment on the im- catholic lords were bailed the next day. 

peachment against lum. Com. Journ. This proves that the impeachment wai 

March 25. not held to be at an end. 

> Shower's Reports, ii. 335. "He was 3 Lords' Journals, May 22, 1G85. 



UiiA. n. — 1673-85. BY DISSOLUTION. 177 

bury and Peterborough, who had been impeached in the pre- 
ceding parhament, to be discharged ; which was done, after 
reading the re.-ohitions of 1679 and 1685, and a long debate 
thereon. But as a general pardon had come out in the 
mean time, by which the judges held that the offences im- 
puted to these two lords had been discharged, and as the 
commons showed no disposition to follow up their impeach- 
ment against them, no parliamentary reasoning can perhaps 
be founded on this precedent.^ In the case of the duke of 
Leeds, impeached by the commons in 1695, no further pro- 
ceedings w 5re had ; but the lords did not make an order for 
his discharge from the accusation till five years after three 
dissolutions had intervened, and grounded it upon the com- 
mons not proceeding with the impeachment. They did not, 
however, send a message to inquire if the commons were 
ready to proceed, which, according to parliamentary usage, 
would be required in case of a pending impeachment. The 
cases of lords Somers, Orford, and Halifax were similar to 
that of the duke of Leeds, except that so long a period did 
not intervene. These instances therefore rather tend to con- 
firm the position that impeachments did not ipso facto abate 
by a dissolution, notwithstanding the reversal of the order of 
1679. In the case of the earl of Oxford, it was formally 
resolved in 1717 that an impeachment does not determine 
by a prorogation of parliament ; an authority conclusive 
to those who maintain that no difference exists in the law 
of parliament between the effects of a prorogation and a 
dissolution. But it is difficult to make all men consider this 
satisfactory. 

The question came finally before both houses of parliament 
in 1791, a dissolution having intervened during the impeach- 
ment of Mr. Hastings ; an impeachment which, far unlike 
the rapid proceedings of former ages, had already been for 
three years before the house of lords, and seemed likely to 
run on to an almost interminable length. It must have been 
abandoned in despair, if the prosecution had been held to de- 
termine by the late dissolution. The general reasonings, 
and the force of precedents on both sides, were urged with 
great ability, and by the principal speakers in both houses ; 

1 Upon considering the proceedings in there can be little doubt that their re- 

the house of lords on this subject, Oct. 6 lease had been chiefly grounded on th« 

and 30, 1690, and especially the protest act of grace, and not on the abandon 

iigned by eight peers on the latter dav, uieut of the impeachment. 



178 POPISH PLOT. Chap. XIl 

the lawyers generally inclining to maintain the resolution of 
IGHo, that impeachments abate by a dissolution, but against 
still greater names -vhich were united on the opposite side. 
In tiie end, after an ample discussion, the continuance of im- 
peachments, in spite of a dissolution, was carried by very 
large majorities ; and this decision, so deliberately taken, and 
so free from all suspicion of partiality (the majority in 
neither house, especially the upper, bearing any prejudice 
against the accused person), as well as so consonant to prin- 
ciples of utility and constitutional policy, must forever have 
set at rest all dispute upon the question. 

The year 1G78, and tlie last session of the parliament that 
had continued sii^ce IGGl, were memorable for the great na- 
is[i lot tional delusion of the popish plot. For national it 
opis po. ^^^^ undoubtedly to be called, and by no means 
confined to the whig or opposition party, either in or out of 
parliament, though it gave them much temporary strength. 
And though it was a most unhappy instance of the credulity 
begotten by heated passions and mistaken reasoning, yet 
there were circumstances, and some of them very singular 
in their nature, which explain and furnish an apology for the 
public error, and which it is more important to point out and 
keep in mind, than to inveigh, as is the custom in modern 
times, against the factiousness and bigotry of our ancestors. 
For I am persuaded that we are far fi'om being secure^ from 
similar public delusions, whenever such a concurrence of co- 
incidences and seeming probabilities shall again arise as mis- 
led nearly the whole [jcople of England in the popish plot.^ 

It is first to be remembered that there was really and truly 
a popish plot in being, though not that which Titus Gates 
and his associates pretended to reveal — not merely in the 
sense of Hume, who, arguing from the general spirit of 
proselytism in that religion, says there is a perpetual con- 
spiracy against all governments, protestant, Mahometan, and 
pagan, but one alert, enterprising, effective, in direct opera- 
tion against the established protestant religion in England. 
In this plot the king, the duke of York, and the king of 
France w^ere chief conspirators; the Romish priests, and 
especially the Jesuits, were eager cooperators. Their ma- 

1 Bishop Parker is not wrong in saving covery of Oates's plot, they readily be- 
that the bouse of commons had so long lieved everything he said; for they haO 
accustomed themselves to strange fictions long expected whatever he dw^lared 
about popery, that upon the first dis- Uist. of his own Time, p. 248. 



Ciu. 11.-167.3-85. COLEMAN'S LETTERS. 179 

chinations and their hopes, long suspected, and in a jjenerai 
sense known, were divuli^ed by the seizure and coiMnaa's 
publication of Coleman's letters. "We have '''"*-"™- 
hei-e," he says, in one of these, "a mighty work upon our 
hands, no less than the conversion of three kingdom-^, and by 
that perhaps the utter subduing of a pestilent heresy, which 
has a long time domineered over tliis northern world. There 
were never such hopes since the death of our queen Mary as 
now in our days. God hath given us a prince who is be- 
come (I may say by miracle) zealous of being the author 
and inslj ument of so glorious a work ; but tlie opposition we 
are sure to meet with is al.so like to be great, so th;it it imports 
us to get all the aid and assistance we can." These letters 
were addressed to Fatlier la Chaise, confessor of Louis 
XIV., and displayed an intimate connection with France for 
the great purpose of restoring popery. They came to light 
at tlie very period of Oates's discovery ; and, though not 
giving it much real confirmation, could hardly fail to make a 
powerful impression on men unaccustomed to estimate the 
value and bearings of evidence.^ 

The conspiracy supposed to have been concerted by the 
Jesuits at St. Omer, and in which so many English catholics 
were implicated, chiefly consisted, as is well known, in a 
scheme of assassinating the king. Tiiough the obvious false- 
hood and absurdity of much tliat the witnesses deposed in re- 
lation to this plot render it absolutely incredible, and fully 
acquit those unfortunate victims of iniquity and prejudice, it 
could not appear at the time an extravagant supposition that 
an eager intriguing faction should have considered the king's 
life a serious obstacle to their hopes. Though as much at- 
tached in heart as his nature would permit to the catholic 
religion, he was evidently not inclined to take any effectual 
measures in its favor; he was but one year older than his 
brother, on the contingency of whose succession all their 
Lopes rested, since his heiress was not only brought up in the 
protestant faith, but united to its most strenuous defender 
Nothing could have been more anxiously wished at St. Omei 

1 Pari. nU';. 1024 lO.ij. State Trials, sage in the letters, Js not deficient in 

Tii. 1. Keiinet, 327, 337, 3.^1. North's acut iiess. lu tact, this not only con- 

Exiimen. 129, 177. Ralph, Sa'i. Burnet, victed Colemiin, but r:ii.-<ed a general con- 

1. 56o. Scrot'i;,s tried Coleoiau with much viction of the truth of a plot — anil a 

rudeness and parti.ility ; but his sum- plot there was, though not Oates's. 
ming up, in reference to the famous pas- 



180 MURDER OF GODFREY. Chap. XIL 

than tlie death of Charles ; and it does not seem improbable 
that the atrocious fictions of Gates may have been originally 
suggested by some actual, though vague, projects of assassina- 
tion, which he had heard in discourse among the ardent spir- 
its of that college. 

The popular ferment which this tale, however undeserving 
of credit, excited in a predisposed multitude, was 
of sir Ed- naturally wrought to a higher pitch by the very 
Godfrey"^* extraordinary circumstances of sir Edmondbury 
Godfrey's death. Even at this time, although we 
reject the imputation thrown on the catholics, and especially 
on those who suffered death for that murder, it seems impos- 
sible to frame any hypothesis which can better account for 
the facts that seem to be authenticated. That he was mur- 
dered by those who designed to lay the charge on the papists, 
and aggravate the public fury, may pass with those wlio rely 
on such writers as Roger North,^ but has not the slightest 
corroboration from any evidence, nor does it seem to have 
been suggested by the contemporary libellers of the court 
party. That he might have had, as an active magistrate, 
private enemies whose revenge took away his life, which 
seems to be Hume's conjecture, is hardly more satisfactory; 
the enemies of a magistrate are not likely to have left his 
person unplundered ; nor is it usual for justices of the peace, 
merely on account of the discharge of their ordinary duties, 
to incur such desperate resentment. That he fell by his 
own hands was doubtless the suggestion of those who aimed 
at discrediting the plot ; but it is impossible to reconcile this 
with the marks of violence which are so positively sworn to 
have appeared on his neck : and, on a later investigation of 
the subject in the year 1G82, when the court had become very 
powerful, and a belief in the plot had grown almost a mark 
of disloyalty, an attempt made to prove the self-murder of 
Godfrey, in a trial before Pemberton, failed altogether ; and 
the result of the whole evidence on that occasion was strongly 
to confirm the supposition that he had perished by the hands 
of assassins.*^ His death remains at this moment a problem 

1 Examen, p. 196. to prove the truth of the fact, which, 

* K. V. Farwell and others. State though in a cape of libel, Pemberton 

Trials, viii. 1361. They were indicted allowed. But their own witnesses proved 

for publishing some letters to prove that that Godfrey's body had all the appear- 

Godfrey had killed himself They de- ance of being strangled. 

fended themselves by calling witnesses The Roman catholics gave out, at tba 



Cha. n. — 1673-85. INJUSTICE OF JUDGES. 181 

for which no tolerably satisfactory solution can be offered 
But at the time it was a very natural presumption to connect 
it with the plot, wherein he had not only taken the deposi- 
tion of Oates, a circumstance not in itself highly important, 
but was sup[)osed to have received the confidential communi- 
cations of Coleman.^ 

Another circumstance, much calculated to persuade ordi- 
nary minds of the truth of the plot, was the trial of Reading, 
a Romish attorney, for tampering with the witnesses against 
the accused catholic peers, in order to make them keep out 
of the way.^ As such clandestine dealing with witnesses 
creates a strong, and perhaps with some too strong, a pre- 
sumption of guilt, where justice is sure to be uprightly ad- 
ministered, men did not make a fair distinction as to times 
when the violence of the court and jm-y gave no reasonable 
hope of escape, and when the most innocent party would 
much rather procure the absence of a perjured witness than 
trust to the chance of dispi'oving his testimony. 

There was indeed good reason to distrust the course of 
justice. Never were our tribunals so disfrraced ^ • .• » 

1. 1 1 1 1 • • • • ? r. Injustice of 

by the brutal manners and miquitous partiality of judges on 
the' bench as in the latter years of this reign. *'*^ '"'^'*' 
The State Trials, none of which appear to have been pub- 
lished by the prisoners' friends, bear abundant testimony to 
the turpitude of the judges. They explained away and 
softened the palpable contradictions of the witnesses for the 
crown, insulted and threatened those of the accused, checked 
all cross-examination, assumed the truth of the charge 
throughout the whole of every trial.* One Whitbread, a 

time of Godfrey's death, that ho had times, Ralph, does not in the slightest 

killed himself, and hurt their own degree pretend to account for Godfrey'* 

cause by foolish hes. North's £xamen, death; though, in his general rellectioni 

p. 200. on the plot (p. 555), he relies too much 

1 It was deposed by a respectable wit- on the assertions of North and I'Es- 

ness that Godfrey entertained apprehen- trange. 

sions on account of what he had done as 2 State Trials, vii. 259. North's Ex- 

to the plot, and had said, '' On my con- amen, 240. 

science, I believe I shall be the first 8 State Trials, toI. rli. passim. On 

martyr." State Trials, vii. 108. These the trial of Green, Berry, and Hill, for 

little additional circumstances, which Godfrey's murder, part of the story for 

are suppre-ssed by later historians, who the prosecution was, that the body wa» 

speak of the plot as unfit to impose on brought to Hill's lodgings on the Satur- 

any but the most bigoted fanatics, con- day, and remained tliere till Monday, 

tributed to make up a body of presump- The pri.soner called wituesses who lodged 

tiTe and positive evidence from which in the same house to prove that it could 

human belief is rarely withheld. not have been there without their knowl- 

It is remarkable that the most acute edge. Wild, one of the judges, a.isuniinu, 

and diligent historian we possess for those as usual, the truth ot the stor^ a.s beyond 



182 INJUSTICE OF JUDGES. Chap. XII 

Jesuit, having been indicted with several others, and the evi- 
dence not being sufTicient, Scroggs discharged the jury of 
him, but ordered him to be kept in custody till more proof 
might come in. He was accordingly indicted again for tJie 
same offence. On his pleading that he had been already 
tried, Scroggs and North had the effrontery to deny that he 
had been ever put in jeopardy, though the witnesses of the 
crown had been fully heard, before tlie jury were most ir- 
regularly and illegally discliarged of him on the former trial. 
North said he had often known it done, and it was the com- 
mon course of law. In the course of this proceeding, Bed- 
loe, who had deposed nothing explicit against the prisoner 
on the former trial, accounted for this by saying it was not 
then convenient; an answer with which the court and jury 
were content.^ 

It is remarkable that, although the king might be justly 
surmised to give little credence to the pretended plot, and 
the duke of York was manifestly affected in his interests by 
the heats it excited, yet the judges most subservient to the 
court, Scroggs, North, Jones, went with all violence into the 
popular cry, till, the witnesses beginning to attack the queen 
and to menace the duke, they found it was time to rein in, 
as far as they could, the passions they had instigated.^ Pem- 
berton, a more honest man in political matters, showed a 
remarkable intempeiance and unfairness in all trials relating 
to popery. Even in that of lord Stafford in 1 680, the last, 

controversy, said it was very suspicious judges independent of the crown, but as 

tliat they should see or hear nothing of it brought forward those principles of 

it; and another, Dolben, told them it was equal and indifferent justice, which can 

well they were not indicted. Id. 199. never be expected to flourish but under 

Jones, summing up the evidence on sir the shadow of liberty. 
Thomas Oascoigne"s trial at York (an l State Trials, 119. 315. 344. 
aged catholic gentleman, most improba- 2 Koger North, whose long account of 

bly accused of accession to the plot), the popish plot is, as usual with him, » 

says to the jury : " Gentlemen, you medley of truth and lies, acuteness and 

have the king's witness on his oath; he absurdity, represents his brother, the 

that testifies against him is barely on his chief-justice, as perfectly immaculate in 

word, and he is a papist." Id. 1039. the midst of this degradation of the bench. 

Thus deriving an argument from an The State Trials, however, show that he 

iniquitous rule, which at that time pre- was as partial and unjust towards the 

vailed in our law, of refusing to hear prisoners as any of the rest, till the gov- 

tlie prisoner's witnesses upon oath. Gas- ernment thouglit it necessary to inter- 

coigne, however, was acquitted. fere. The nionicnt when the judges 

It would swell this note to an unwar- veered round was on the trial of sir 

rantable length were I toextract so much George ^Vakeman, physician to thequeen. 

of the trials as might fully exhibit all the Scroggs, who had been infamously partial 

instances of gross partiality in the conduct against the prisoners upon every former 

of the judges. I must, therefore, refer occasion, now treated Gates and Hedloe aa 

my readers to the volume itself — a stand- they deserved, though to the aggravation 

Ing monument of the neces.sity of the of his own disgrace. Stale Trials, vii. 

revolution ; not only as it rendered the 619-686. 



Cha. II.- 1673-35. PREJUDICE AGAINST PAPISTS. 183 

and perhaps the worst, proceeding under this delusion, though 
the court had a standing majority in the house of lords, he 
was convicted by tif'ty-five peers against thirty-one ; the earl 
of Nottingham, lord-chancellor, the duke of Lauderdale, and 
several others of the administration voting him guilty, while 
he was acquitted by the honest HoUis and the acute Halifax.* 
So far was the belief in the popish plot, or the eagerness in 
hunting its victims to death, from being confined to the whig 
faction, as some writers have been willing to insinuate. 
None had more contributed to raise the national outcry 
against the accused, and create a firm persuasion of the 
reality of the plot, than the clergy in their sermons, even the 
most respectable of their order, Sancroft, Sharp, Barlow, 
Burnet, Tillotson, Stillingfleet ; inferring its truth from God- 
frey's murder or Coleman's letter, calling for the severest 
laws against catholics, and imputing to them the fire of Lon- 
don, nay even the death of Charles I.^ 

Though the duke of York was not charged with participa- 
tion in the darkest schemes of the popish conspirators, it Avas 
evident that his succession was the great aim of their en- 
deavoi-s, and evident also that he had been engaged in the 
more real and undeniable intrigues of Coleman. His acces- 
sion to the throne, long viewed with just apprehension, now 
seemed to threaten such perils to every part of the constitu- 
tion as ought not supinely to be waited for, if any means 
could be devised to obviate them. This crave rise -c, , ■ , 

1111 PI 1 • 1 -ii 111 Exclusion of 

to the bold measure oi the exclusion bill, too bold duke of York 
indeed for the spirit of the country, and the rock p'"°p°^«'1- 
on which English liberty was nearly shipwrecked. In the 
long parliament, full as it was of pensioners and creatures of 
court infiuence, nothing so vigorous would have been suc- 

1 Lords' Journals, 7th December; ashamed to condemn him ; but it was his 
State Trials, 1552 ; Pari. Uist. 1229. misfortune to play his game worst when 
Stafford, though not a man of much abil- he had the best cards." P. 637. 
ity, had rendered himself obnoxious as a -I take this from extracts out of thos« 
prominent opposer of all measures in- sermons, contained in the Roman Catholio 
tended to check the growth of popery*, pamphlet printed in 1687, and entitled 
His name appears constantly in protests Good Advice to the Pulpits. The Prot- 
upon sucli occasions — as, for instiince, estant divines did their cause no good by 
March 3, 1678, against the bill for raising mi.srepresentation of their adversaries, 
money for a French war. Keresby praises and by their propensity to rudeness and 
his defence very highly, p. 108. The scurrility. The former fault, indeed, ex- 
duke of York, on the contrary, or his bi- isted in a much gi-eater degree on the op- 
ographer, observes : " Those who wished posite side, but by no means the latter 
lord Stafford well were of opinion that, See also a ti-eat;*e by Barlow, published 
had he managed the advantages which in 1679, entitle.^ Popish Principles perni 
were given him with dexterity, he would clous to Protestant Princes, 
have made the greatest part of his judges 
VOL. II. — c. 13 



184 



PARLIAMENT DISSOLVED. 



Chap. XII 



cessful. Even lu the bill which excluded catholic peers 
from sitting in the house of lords, a proviso, exempting the 
duke of York froni its operation, having been sent down 
from the other house, passed by a majority of two voices.^ 
Parliament But the zeal they showed against Danby induced 
dissolved. the king to put an end to this parliament of seven- 
teen years' duration ; an event long ardently desired by the 
popular party, who foresaw their ascendency in the new 
elections.^ The next house of commons accordingly came 
together with an ardor not yet quenched by corruption ; and 
after reviving the impeachments commenced by their pred- 
ecessors, and carrying a measure long in agitation, a test^ 



1 Pari. Hist. 1040. 

2 See Marveirs "Seasonable Argument 
to persuade all the Grand Juries in Eng- 
Uind to petition for a new Parliament." 
He gives very bad characters of the prin- 
cipal members on the court side ; but we 
cannot take for granted all that comes 
fro:;"; so unscrupulous a libeller. Sir 
Harbottle Griiiistone had first thrown 
out, in the session of 1675. that a Stan ding 
parliament was as great a grievance as a 
standing army, and that an application 
ought to be made to the king for a disso- 
lution. This was not seconded, and met 
with much disapprobation from both sides 
of the house. Pari. Hist. vii. 64. But 
the country party, in two years" time, 
had changed their views, and were be- 
come eager ^or a dis.solution. An address 
to that eiTeM was moved in the house of 
lords, and lost by only two voices, the 
duke of York voting for it. Id. 800. This 
is explained by a passage in Coleman's 
letter.', where that intriguer exprc,s.ses 
his desire to see parliament dissolved, in 
the hope that another would be more 
favorable to the toleration of catholics. 
This must mean that the dissenters might 
gain an advantage over the rigorous 
church of England men, and be induced 
to come into a general indulgence. 

3 This test { 80 Car. TI. stat. 2 ) is the 
declaration subscribed by members of 
both hous3S of parliament on taking their 
seats, thai there is no transubstantiation 
of the elerrjents in the Lord's Supper ; 
and that the invocation of saints, as prac- 
tised in the church of Rome, is idolatrous. 
The oath of supremacy was already taken 
by the commons, though not by the 
lords ; and it is a great mistake to imagine 
that catholics were legally capable of 
sitting in the lower house before the act 
of 1679. But it had been the aim of the 
long parliament in 1642 to exclude them 
from thj house of lords ; and this was of 



course revived with greater eagerness as 
the danger from their infi uence grew more 
apparent. A bill for this purpose passed 
the commons in 1675, but was thrown out 
by the peers. Journals, May 14; Nov. 8. 
It was brought in again in the spring of 
1678. Pari. Hist. 990. In the autumn of 
the same year it was renewed, when the 
lords agreed to the oath of supremacy, 
but omitted the declaration against tran- 
substantiation, so far as their own house 
was affected by it. Lords' .Journals, Nov. 
20, 1678 They also excepted the duke 
of York from the operation of the bill ; 
which exception was carried in the com- 
mons by two voices. Pari. Hist. 1040. 
The duke of York and seven more lords 
protested. 

The violence of those times on all sides 
will account for this theological declara- 
tion ; but it is more difficult to justify 
its retention at present. Whatever in- 
fluence a belief in the pore'B supremacy 
may exercise upon n en'i> pf'litics, it is 
hard to see how the doctrine of transub- 
stantiation can direcitly affect them ; and 
surely he who renounces the former can- 
not be very dangerous on account of his 
adherence to the latter. Nor is it le-ss 
extraordinary to demand, from any of 
those who usually compose a house of 
commons, the assertion that the practice 
of the church of Rome in the invocation 
of saints is idolatrous ; since, even on the 
hypothesis that a country gentleman has 
a clear notion of what is meant by idola- 
try, he is, in many cases, wholly out of 
the way of knowing what the church of 
Rome, or any of its members, believe or 
practise. The invocation of saints, as 
held and explained by that church in the 
council of Trent, is surely not idolatrous, 
with whatever error it may be charged ; 
but the practice at least of uneducated 
Roman catholics seems fully to justify tha 
declaration ; understanding it to refer tc 



CnA. II. — 1G73-85. EXCLUSION OF THE DUKE OF YORK. 185 

which shut tlie catholic peers out of parliament, went upon 
the exclusion bill. Their dissolution put a stop to this, and 
in the next parliament the lords rejected it.^ 

The right of excluding an unworthy heir from the succes- 
sion was supported not only by the plain and fundamental 
principles of civil society, which establish the interest of the 
people to be the paramount object of political institutions, 
but by those of the English constitution. It had always been 
the better opinion among lawyers that the reigning king, with 
consent of parliament, was competent to make any changes 
in the inheritance of the crown ; and this, besides the acts 
passed under Henry VIII. empowering him to name his 
successor, w^as expressly enacted, with heavy penalties 
against such as should contradict it, in the thirteenth year 
of Elizabeth. The contrary doctrine, indeed, if pressed to 
its legitimate consequences, would have shaken all the stat- 
utes that limit the prerogative ; since, if the analogy of en- 
tails in private inheritances were to be resorted to, and the 
existing legislature should be supposed incompetent to alter 
the line of succession, they could as little impair as they 
could alienate the indefeasible rights of the heir ; nor could 
he be bound by restrictions to which he had never given his 
assent. It seemed strange to maintain that the pai'liament 
could reduce a future king of England to the condition of a 
doge of Venice by shackling and taking away his authority, 
and yet could not divest him of a title which they could ren- 
der little better than a mockery. Those accordingly who 
disputed the legislative omnipotence of parliament did not 
hesitate to assert that statutes infringing the prerogative 
were null of themselves. With the coui-t lawyers conspired 
the clergy, who pretended these matters of high policy and 
constitutional law to be within their province, and, witii 
hardly an exception, took a zealous part against the ex- 
clusion. It was indeed a measure repugnant to the common 
prejudices of mankind, who, without entering on the abstract 
competency of parliament, are naturally accustomed in an 

certain superstitiong, countenanced or bill was carried. Slay 21, 1679, by 207 

not era'licafej by their cleriry. I have to 12S. The debates are in Parliamentary 

Bometiuies tliouf;ht that the legislator of History, 1125, et post. In the next par- 

a great nation sets off oddly by .solemnly liament It was carried without a division. 

professin;; theolosical positions about Sir Leoline .Jenkins alone seems to have 

which he knows nothing, and swearing to taken the hipjh ground that • parliament 

the possession of property which he does cannot di-inherit the heir of the crown ; 

not enjoy. [1827.] and that, if such anact should pa-ss, is 

i The eecond reading of the exclusion would be invalid in itself." id. 1191. 



186 EXCLUSION OF THE DUKE OF YOKK. Chap. XII, 

hereditary monarchy to consider the next heir as possessed 
of a right, of which, except through necessity or notorious 
criminahty, he cannot be justly divested. Tlie mere profes- 
sion of a rehgion different from the estabhshed does not 
seem, abstractedly considered, an adequate ground for un- 
settling the regular order of inheritance. Yet such was the 
narrow bigotry of the sixteenth and seventeenth centuries, 
which died away almost entirely among protestants in the 
next, that even the trifling differences between Lutherans 
and Calvinists had frequently led to alternate persecutions in 
the German states, as a prince of one or the other denomi- 
nation happened to assume the government. And the Rom- 
ish religion in particular was in that age of :^o restless and 
malignant a character, that, unless the power of the crown 
should be far more strictly limited than had hitherto been 
the case, there must be a very serious danger from any sov- 
ereign of that faith ; and the letters of Coleman, as well as 
other evidences, made it manifest that the duke of York was 
engaged in a scheme of general conversion, Avhich, from his 
arbitrary temper and the impossibility of succeeding by fair 
means, it was just to apprehend, must involve the subversion 
of all civil liberty. Still this was not distinctly perceived 
by persons at a distance from the scene, imbued, as most of 
the gentry were, with the principles of the old cavaliers and 
those which the church had inculcated. The king, though 
hated by the dissenters, retained much of the affections of 
that party, who forgave the vices they deplored, to his 
father's memory and his personal affability. It appeared 
harsh and disloyal to force his consent to the exclusion of a 
brother in whom he saw no crime, and to avoid which he 
offered every possible expedient.^ There will always be 
found in the people of England a strong unwillingness to 
force the reluctance of their sovereign — a latent feeling, of 
which parties in the heat of their triumphs are seldom aware, 
because it does not display itself until the moment of reac- 
tion. And although, in the less settled times before the Rev- 
olution, this personal loyalty was highly dangerous, and may 
still, no doubt, sometimes break out so as to frustrate objects 
of high import to the public weal, it is on the whole a salu- 

1 While the exclusion bill was passing it should come up; telling thetn, at tha 

the commons, the king took the pains to same time, let what would happen, h« 

speak himself to almost every lord, to vrould never suffer such a villanous blL 

dissuade him from assenting to it when to pass Life of Jiimes, 558. 



CHA.n. — 1673-85. SHAFTESBURY AND MONMOUTH. 187 

tary temper for the conservation of the monarchy, which 
may require such a barrier against the encroachments of 
factions and the fervid passions of the multitude. 

The bill of exclusion was drawn with as much regard to 
the inheritance of the duke of York's daughters 

.1 11 111 1 1 Schemes of 

as they could reasonably demand, or as any law- Shaftesbury 
yer engaged for them could have shown ; though ^^^ J^^'i- 
something different seems to be insinuated by 
Burnet. It provided that the imperial crown of England 
should descend to and be enjoyed by such person or persons 
successively during the life of the duke of York as should 
have inherited or enjoyed the same in case he were naturally 
dead. If the princess of Orange was not expressly named 
(which, the bishop tells us, gave a jealousy, as though it 
were intended to keep that matter still undetermined), this 
silence was evidently justified by the possible contingency of 
the birth of a son to the Juke, whose right there was no in- 
tention in the framers of the bill to defeat. But a large pai't 
of the opposition had unfortunately other objects in view. It 
had been the great error of those who withstood the arbi- 
trary counsels of Charles II. to have admitted into their 
closest confidence, and in a considerable degree to the man- 
agement of their party, a man so destitute of all honest prin- 
ciple as the earl of Shaftesbury. Under his contaminating 
influence their passions became more untractable, their con- 
nections more seditious and democratical, their schemes more 
revolutionary ; and they broke away more and more from the 
line of national opinion, till a fatal reaction involved them- 
selves in ruin, and exposed the cause of public liberty to 
its most imminent peril. The countenance and support of 
Shaftesbuiy brought forward that unconstitutional and most 
impolitic scheme of the duke of Monmouth's succession. 
There could hardly be a greater insult to a nation used to 
respect its hereditary line of kings than to set up the bastard 
of a prostitute, without the least pretence of personal excel- 
lence or public services, against a princess of known virtue 
and attachment to the protestant religion. And the effron- 
tery of this attempt was aggravated by the libels eagerly cir- 
culated to dupe the credulous populace into a belief of Mon- 
mouth's legitimacy. The weak young man, lured on to de- 
struction by the arts of intriguers and the applause of the 
multitude, gave just offence to sober-minded patriots, who 



188 



UNSTEADINESS OF THE KING. 



ClIAi>. XII 



knew where the true hopes of public liberty were anchored, 
by a kind of triumphal piocession through parts of the coun-< 
try, and by other indications of a presumptuous ambition.^ 

If any apology can be made for the encouragement. given 
by some of the whig party (for it was by no means general) 
to the pretensions of Monmouth, it must be found in their 
knowledge of the king's affection for him, which furnished a 
hope that he might more easily be brought in to the exclu- 
sion of his brother for the sake of so beloved a child than 
for the prince of Orange. And doubtless there was a period 
when Charles's acquiescence in the exclusion did not appear 
so unattainable as, from his subsequent line of behavior, we 
are apt to consider it. It appears from the recently pub- 
lished Life of James that, in the autumn of 1680, the em- 
barrassment of the king's situation, and the influence of the 
duchess of Portsmouth, who had gone over to the exclu- 
Unsteadi- sionists, made him seriously deliberate on aban- 
thfking. doning his brother.^ Whether from natural insta- 



1 Ralph, p. 498. The atrocious libel, 
entitled. ' An Appeal from the Country 
to the City," published ia 1679, and usu- 
ally ascribed to i'erguson (though said, 
in Biog. Brit., art. L'Estrange, to be 
written by Charles Blount), was almost 
sufficient of itself to excuse the return of 
public opinion towards the throne. State 
Tracts, temp. Car. II.; Ilalph, i. 476; 
Pari. Hist, iv Appendix. The king is 
personally struck at in this tract with the 
utmost fury ; the queen is called Agrip- 
pina, in allusion to the infamous charges 
of Oates; Monmouth is held up as the 
hope of the country. "He will stand by 
you, therefore you ought to stand by him. 
He who hath the worst title always makes 
the best king." One Harris was tried for 
publishing thi^ pamphlet. The jury at 
fir.st found him guilty of selling — an 
equivocal verdict, by which they probably 
meant to deny, or at least to disclaim, any 
assertion of the libellous character of the 
pubhcation. But Scroggs telling them it 
was their province to say guilty or not 
guilty, they returned a verdict of guilty. 
State Trials, vii. 925. 

Another arrow, dipped in the same 
poison, was a ' Letter to a Person of Hon- 
or concerning the Black Box.' Somers 
Tracts, viii. 189. The story of a contract 
of maniage between the king and Mrs. 
Waters, Monmouth's mother, concealed 
in a black box, had lately been current; 
and the former had taken pains to expose 
Its falsehood by a public examination of 
the gentleman whose name had been 



made use of. This artful tract is intend- 
ed to keep up the belief of Monmouth's 
legitimacy, and even to graft it on tho 
undeniable falsehood of that tale; as if 
it had been purposely fabricated to delude 
the people, by setting them on a wrong 
scent. See also another libel of the same 
class, p. 197. 

Though Monmouth's illegitimacy is 
past all question, it has been observed by 
Harris that the princess of Orange, in 
writing to her brother about Mrs. Waters, 
in 1655, twice names her as his wife. 
Thurloe, i. 665, quoted in Harris's Lives, 
iv. 168. But, though this was a scanda- 
lous indecency on her part, it proves no 
more than that Charles, like other young 
men in the heat of passion, was foolish 
enough to give that appellation to his 
mistress, and that his sister humored 
him in it. 

Sidney mentions a strange piece of Mon- 
mouth's presumption. ^Vhen he went 
to dine with the city in October, 1680, it 
was remarked that the bar, by which the 
her.alds denote illegitim.acy, had been 
taken off the royal arms on his coach. 
Letters to Saville, p. 54. 

2 Life of James, 592, et po.st; compare 
Dalrymple, p. 265, et post. Barillon was 
evidently of opinion that the king would 
finally abandon his brother. Suudeilanl 
joined the duchess of Portsmouth, and 
was one of the thirty peers who voiej 
for the bill in November, 1680. James 
charges Godolphin also witli deserting 
him, p. 615. But his nane does not ap- 



Cha. II. — 1G73-85. DESIGNS OF TILE DUKE OF YOEK. 189 

bility of judgment, from the steady adherence of France 
to the duke of York, or from observing the great strcnglli 
of the tory party in the house of lords, where the bill 
was rejected by a majority of Go to 30, he soon returned 
to his former disposition. It was long, however, before he 
treated James with perfect cordiality. Conscious of his own 
insincerity in religion, which the duke's bold avowal of an 
obnoxious creed seemed to reproach, he was provoked at 
bearing so much of the odium and incurring so many of the 
difficulties which attended a profession that he had not ven- 
tured to make. He told Hyde, before the dissolution of the 
parliament of 1680, that it would not be in his power to pro- 
tect his brother any longei', if he did not conform and go to 
church.^ Hyde himself, and the duke's other friends, had 
never ceased to urge him on this subject. Their importunity 
was renewed by the king's order, even after the dissolution 
of the Oxford parliament ; and it seems to have been the 
firm persuasion of most about the court that he could only 
be preserved by conformity to the protestant religion. He 
justly apprehended the consequences of a refusal ; but, in- 
flexibly conscientious on this point, he braved whatever 
might arise from the timidity or disaffection of the ministers 
and the selfish fickleness of the king. 

In the apprehensions excited by tlie king's unsteadiness 
and the defection of the duchess of Portsmouth, he deemed 
his fortunes so much in jeopardy as to have resolved on ex- 
citing a civil war, rather than yield to the exclusion. He 
had already told Barillon that the royal authority could be 
reestablished by no other means.- The episcopal party in 
Scotland had gone such lengths that they could hardly be 
safe under any other king. The catholics of England were 
of course devoted to him. With the help of these he hoped 
to show himself so formidable that Charles would find it his 
interest to quit that cowardly line of politics to which he was 
sacrificing his honor and afiections. Louis, never insensible 
to any occasion of rendering England weak and miserable, 
directed his ambassador to encourage the duke in this guilty 
project with the promise of assistance.^ It seems to have 

pear in the protest signed by twentj-fiTe 1 Life of James, p. G57. 

peers, though that of the privy seal. Lord 2 n est persuade que Tautoritfi royal* 

Anglesea, does. The duchess of I'orts- nc se peut retablir en Angleterre quo par 

mouth sal near the commons at Stafford's une guerre civile. Aug. 29, IGSft Dal- 

trial, "dispensing lier sweetmeats and ryniple, 205. 

Uracious looks among them." P. (i38. ^ Dah-ymplc. 277. Nov. 16S0. 



190 EXrEDIEXTS TO AVOID Chat. XII. 

been prevented by the wisdom or public sjiirit of Churchill, 
who pointed out to Barillon the absurdity of supposing that 
the duke could stand by himself in Scotland. This scheme 
of lighting up the flames of civil war in three kingdoms, 
for James's private advantage, deserves to be more remarked 
than it has hitherto been at a time when his apologists seem 
to have become numerous. If the designs of Russell and 
Sidney for the preservation of their country's liberty are 
blamed as rash and unjustifiable, what name shall we give 
to the project of maintaining the pretensions of an individ- 
ual by means of rebellion and general bloodshed ? 

It is well known that those who took a concern in the 
maintenance of religion and liberty were much divided as to 
the best expedients for securing them ; some, who thought 
the exclusion too violent, dangerous, or impracticable, pre- 
ferring the enactment of limitations on the prerogatives of a 
catholic king. This had begun, in fact, from the court, who 
passed a bill through the house of lords in 1 677, for the se- 
curity, as it was styled, of the protestant religion. This 
provided that a declaration and oath against transubstantia- 
tion should be tendered to every king within fourteen days 
after his accession ; that, on his refusal to take it, the eccle- 
siastical benefices in the gift of the crown should vest in 
the bishops, except that the king should name to every 
vacant see one out of three persons proposed to him by the 
bishops of the province. It enacted also that the children 
of a king refusing such a test should be educated by the 
archbishop and two or three more prelates. This bill 
dropped in tlie commons ; and Marvell speaks of it as an 
insidious stratagem of the ministry.* It is more easy, how- 
ever, to give hard names to a measure originating with an 
obnoxious government than to prove that it did not afford a 
considerable security to the established church, and impose 
a very remarkable limitation on the prerogative. But the 
opposition in the house of commons had probably conceived 
their scheme of exclusion, and would not hearken to any 

1 Marvell's Growth of Popery, in State have been that the children of the royal 

Tracts, temp. Car. II., p. 98. Pari. Hist, family were to be consigned for educa- 

853. The second reading was carried by tion to the sole government of bishops. 

127 to 88. Sergeant Maynard, who was The duke of York and thirteen other 

probably not in the secrets of his party, peers protested against this bill, not all 

Beems to have been surprised at their of theui from the same motives, as may 

opposition. An objection with Marvell, be collected from their names. Lords' 

and not by any means a bad one, would Journals, 13th and 15th March, 1679 



Cha. n. — 1673-85. THE EXCLUSION. 191 

compromise. As soon as the exclusion became the topic of 
open discussion, the king repeatedly offered to grant every 
security that could be demanded consistently with the lineal 
succession. Hollis, Halifax, and for a time Essex, as well 
as several eminent men in the lower house, were in favor of 
limitations.^ But those which they intended to insist upon 
were such encroachments on the constitutional „ 
authority of the crown, that, except a title and rev- to^avoia°the 
enue, which Charles thought more valuable than e^ciusioa. 
all the rest, a popish king would enjoy no one attribute of roy- 
alty. The king himself, on the oOth of April, 1679, before 
the heats on the subject had become so violent as they were 
the next year, offered not only to secure all ecclesiastical 
preferments from the control of a popish successor, but to 
provide that the parliament in being at a demise of the 
crown, or the last that had been dissolved, should imme- 
diately sit and be indissoluble for a certain time ; that none 
of the privy council, nor judges, lord-lieutenant, deputy- 
lieutenant, nor officer of the navy, should be appointed dur- 
ing the reign of a catholic king, without consent of parlia- 
ment. He offered at the same time most readily to consent 
to any further provision that could occur to the wisdom of 
parliament, for the security of religion and liberty consist- 
ently with the right of succession. Halifax, the eloquent 
and successful opponent of the exclusion, w^as the avowed 
champion of limitations. It was proposed, in addition to 
these offers of the king, that the duke, in case of his acces- 
sion, should have no negative voice on bills ; that he should 
dispose of no civil or military posts without the consent of 
parliament ; that a council of forty-one, nominated by the 
two houses, should sit permanently during the recess or in- 
terval of parliament, with power of appointing to all vacant 
offices, subject to the future approbation of the lords and 
commons.^ These extraordinary innovations would, at least 
for the time, have changed our constitution into a republic ; 
and justly appeared to many persons more revolutionai*y 
than an alteration in the -course of succession. The duke 
of York looked on them with dismay ; Charles, indeed, pi'i- 

1 Lords Russell and Cavendish, sir Shaftesbury, for opposite reasons, stood 

W. Coventry, and sir Thomas Littleton, alone in the council against the scheme 

Beem to have been in iiivor of liniita,- of hmitations. Temple's Memoirs, 

tions. Lord .T. llusscU, p. 42. llalph, 2 Commons' Journals, 23a Not. 1680i 

446. Sidney's Letters, p. 32. Temple and 8th Jan. 1681. 



192 EXPEDIENTS TO AVOID THE EXCLUSION. CiiAi-. XII 

vately declared that he would never consent to such infringe- 
ments of the prerogative.^ It is not, however, easy to per- 
ceive how he could have escaped from the necessity of ad- 
hering to his own propositions, if the house of commons 
would have relinquished the bill of exclusion. The prince 
of Orange, who was doubtless in secret not averse to the lat- 
ter measure, declared strongly against the plan of restric- 
tions, which a protestant successor might not find it practica- 
ble to shake off. Another expedient, still more ruinous to 
James than that of limitations, was what the court itself 
suggested in the Oxford parliament, that, the duke retaining 
the title of king, a regent should be appointed, in the per- 
son of the princess of Orange, with all the royal preroga- 
tives ; nay, that the duke, with his pageant crown on his 
head, should be banished from England during his life.^ 
This proposition, which is a great favorite with Burnet, 
appears liable to the same objections as were justly urged 
against a similar scheme at the revolution. It was cei-taiu 
that in either case James would attemj^t to obtain possession 
of power by force of arms ; and the law of England would 
not treat very favorably those who should resist an acknowl- 
edged king in his natural capacity, while the statute of Henry 
VII. would, legally speaking, afford a security to the adher- 
ents of a de facto sovereign. 

Upon the whole, it is very unlikely, when we look at the 
general spirit and temper of the nation, its predilection for 
the ancient laws, its dread of commonwealth and fanatical 
princii^les, the tendency of the upper ranks to intrigue and 
corruption, the influence and activity of the church, the bold 
counsels and haughty disposition of James himself, that 
either the exclusion, or such extensive limitations as were 
suggested in lieu of it, could have been carried into effect 
with much hope of a durable settlement. It would, I should 
conceive, have' been practicable to secure the independence 
of the judges, to exclude unnecessary placemen and notorious 

1 Life of James, 634, 671. Dalrymple, termined them to persist in their former 
p. 807. scheme. Ileresby sajs (p. 19), confirmed 

2 Da!r3'mple, p. 301. Life of James, by Pari. Hist. 132, it \v:is supported by 
600, 671. The duke gave himself up sir Thomas Littleton, who is said to have 
for lost when he heard of the clause in been originally against the bill of exclu- 
the king's speech declaring his readiness sion, as well as sir William Coventry, 
to hearken to any expedient but the ex- Sidney's Letters, p. 32. It was opposed 
elusion. Birch and Ilauipden, he says, by Jones, Winnington, Booth, and if 
were in favor of this ; but Fitzharris's the Parliamentary Ilistory be right, bj 
business set the house in a iiame, and de- Ilampden and Birch. 



CuA 11. — 1G73-85. WUIG AND TORY. 193 

pensioners from the house of commons, to render the distri- 
bution of money among its members penal, to remove from 
the protestant dissenters, by a full toleration, all temptation 
to favor the court, and, above all, to put down the standing 
army. Though none perhaps of these provisions would have 
prevented the attempts of this and the next reign to intro- 
duce arbitrary power, they would have rendered them still 
more grossly illegal ; and, above all, they would have saved 
that unhappy revolution of popular sentiment which gave the 
court encouragement and temporary success. 

It was in the year 1G7'J that the words Whig and Tory 
were first heard in their application to P2nglish fac- jj^^gg j,f 
tions ; and, though as senseless as any cant terms ^vhy and 
that could be devised, they became instantly as °'^' 
familiar in use as they have since continued. There were 
then indeed questions in agitation which rendered the distinc- 
tion more broad and intelligible than it has generally been in 
later times. One of these, and the most important, was the 
bill of exclusion ; in which, as it was usually debated, the re- 
publican principle, that all positive institutions of society are 
in order to the general good, came into collision with that of 
monarchy, which rests on the maintenance of a royal line, as 
either the end, or at least the necessary means, of lawful 
government. But, as the exclusion was confessedly among 
those extraordinary measures to which men of tory principles 
are sometimes compelled to resort in great emergencies, and 
which no rational whig espouses at any other time, we shall 
better perhaps discern the formation of these grand political 
sects in the petitions for the sitting of parliament, and in the 
counter addresses of the opposite party. 

In the spring of 1679 Ciiarles established a new privj 
council, by the advice of sir William Temple, con- ^, ., 

. . . •' I, , . ^ . , , Now council 

eistmg m great part oi those emuient men hi both tormea by 
houses of parliament who had been most prominent xemVil'!*'^ 
in their opposition to the late ministry.^ He pub- 

1 Temple's Memoirs. lie says their for the king had declared he would take 
revenues in laud or offices amouuted to no measure, nor even choose any new 
800,000/. per annum ; whereas those of counsellor, without their consent. But 
the house of commons seldom exceeded the extreme disadvantage of the position 
400,000i. The king objected much to in which this placed the crown rendered 
admitting Ualifax ; l)Ut himself proposed it absolutely certain that it was not sub- 
Bhaftesbury, much agiiust Temple's mitied to with sincerity. Lady Ports- 
wishes. The funds in Holland rose on mouth told IJarillou 'he new niiuistry 
the news. Barillon was displeased, and was formed in order to get money from 
said it was making " des etats, et non des parliament. Another motive, no doubt, 
consei^f ; " which was not without weight, was to prevent the exclusion bill. 



194 NEW JITNISTRT. Chap. XIL 

licly declared his resolution to govern entirely bj the advice 
of this council and that of parliament. The duke of York 
was kept in what seemed a sort of exile at Brussels.^ But 
the just suspicion attached to the king's character prevented 
the commons from placing much confidence in this new min- 
istry; and, as frequently happens, abated their esteem for 
those who, with the purest intentions, had gone into the 
council.^ They had soon cause to perceive that their distrust 
had not been excessive. The ministers were constantly 
beaten in the house of lords ; an almost certain test, in our 
government, of the court's insincerity.^ The parliament was 
first prorogued, then dissolved ; against the advice, in the 
latter instance, of the majority of that council by whom the 
king had pledged himself to be directed. A new parliament^ 
Lonn-pro- after being summoned to meet in October, 1679, 
roguUonof was prorogued for a twelvemonth without the 
par amea . ^vowed Concurrence of any member of the council. 
Lord Russell, and others of the honester party, withdrew 
from a board where their presence was only asked in mock- 
ery or deceit ; and the whole specious scheme of Temple 
came to nothing before the conclusion of tlie year which had 
seen it displayed.* Its author, chagrined at the disapi)oint- 
ment of his patriotism and his vanity, has sought the causes 
of failure in the folly of Monmouth and perverseness of 
Shaftesbury. He was not aware, at least in their full extent, 
of the king's intrigues at this period. Charles, who had been 

1 Life of James, 558. On the king's time to Sunderland. " If he and two 
sudden illness, Aug. 22, 1G79, tlie ruling more [Essex and Halifax] can well agree 
ministers, Halifax, Sunderland, and Es- among themselves, I believe they will 
Bex, alarmed at the anarchy which might have the management of almost ail busi- 
come on his death, of which Shaftesbury ness, and may bring much honor to 
and Monmouth would profit, seat over themselves and good to our nation." 
for the duke, but soon endeavored to April 21, 1679. But he writes after- 
make him go into Scotland; and, after a wards, Sept. 8, that Halifax and Es.sex 
Eti-uggle against the king's tricks to out- were become very unpopular, p. 50. 
wit them, succeeded in this object. Id. "The bare being preferred." says secre 
p. 570, St post. tary Coventry, " maketli some of them 

2 Temple. Reresby, p. 89. "So true su.^pected, though not criminal." Lord 
it is," he says, " that there is no wearing J. Russell's Life of Lord Russell, p. 90. 
the court and country livery together." 3 See the protests in 1679. passim. 
Thus also Algernon Sidney, in his letters * Temple's Memoirs. Life of James, 
to Saville, p. 16 : — " Tbe king certainly 581. [.\n article in the London Gazette, 
inclines not to be so stiff as formerly in Jan. 3(1, 1680, is rather amusing. " This 
advancing only those that e.xalt preroga- evening the lord Russell, the lord Cav- 
tive ; but the earl of Essex, and some endish, sir Henry Capel, and Mr. Powle, 
others that are coming into play there- prajed his Majesty to give them leave to 
upon, cannot avoid being suspected of withdraw from the couucil-board. To 
having intentions different from what which his Majesty was pleased to answer, 
they have hitherto professed." He as- ' With all his heart. ' " — 1845.] 

jribed the chango of ministry at thia 



CnA. II.— 1G73-85. LONG PKOROGATIOX. 195 

induced to take those whom he most disliked into his council, 
with the liope of obtaining money from parliament, or of" par- 
rying tlie exclusion bill, and had consented to thie duke of 
York's quitting England, found himself inthralled by minis- 
ters whom he could neither corrupt nor deceive ; Essex, the 
firm and temperate friend of constitutional liberty in power 
as he had been out of it, and Halifax, not yet led away by 
ambition or resentment from the cause he never ceased to 
approve. He had recourse therefore to his accustomed 
refuge, and humbly implored the aid of Louis against his 
own council and parliament. He conjured his patron not to 
lose this opportunity of making England forever dependent up- 
on France. These are his own words, such at least as Barillon 
attributes to him.^ In pursuance of this overture, a secret 
treaty was negotiated between the two kings; whereby, after 
a long haggling, Charles, for a pension of 1,000,000 livi-es 
annually during three years, obliged himself not to assemble 
parliament during that time. This negotiation was broken 
off through the apprehensions of Hyde and Sunderland, who 
had been concerned in it, about the end of November, 1679, 
before the long prorogation which is announced in the Ga- 
zette by a proclamation of December 11th. But, the resolu- 
tion having been already taken not to permit the meeting of 
parliament, Charles persisted in it as the only means of 
escaping the bill of exclusion, even when deprived of the pe- 
cuniary assistance to which he had trusted. 

Though the king's behavior on this occasion exposed the 
fallacy of all projects for reconciliation with the house of 
commons, it was very well calculated for his own ends ; nor 
was there any part of his reign wherein he acted with so 
much prudence as from this time to the dissolution of the 
Oxford parliament. The scheme concerted by his adversa- 
ries, and already put in operation, of pouring in petitions 
from every part of the kingdom for the meeting of parlia- 
ment, he checked in the outset by a proclamation, artfully 
drawn up by chief-justice North, which, while it kept clear 
of anything so palpably unconstitutional as a prohibition of 
petitions, served the purpose of manifesting the king's dislike 
to them, and encouraged the magistrates to treat all attempts 
that way as seditious and illegal, Avhile it drew over the 
neutral and lukewarm to the safer and stronger side.^ Then 

Dalrymple, pp. 230, 237. > See Eoger North's account of tttii 



196 PETITIONS AND ADDRESSES. Citap. XTl 

were first ranged against eacli other the hosts of "Whig and 
Toiy, under their banners of hberty or loyaUy ; each zealous, 
at least in profession, to maintain the estabhshed constitution, 
but tlie one seeking its security by new maxims of govern- 
ment, the other by an adherence to the old. ^ It must be ad- 
mitted that petitions to the king from bodies of his subjects, 
intended to advise or influence him in the exercise 

Petitions 111 • 1 1 • /» 

and ad- 01 his Undoubted px'erogatives, such as the time or 
dresses. calling parliament together, flimiliar as they may 

now have become, had no precedent, except one in the dark 
year 1640, and were repugnant to the ancient principles of 
our monarchy. The cardinal principle of toryism is, that 
the king ought to exercise all his lawful prerogatives without 
the interference, or unsolicited advice, even of parliament, 
much less of the people. These novel efforts therefore were 
met by addresses from most of the grand juries, from the 
magistrates at quarter sessions, and from many corpoivttions, 
expressing not merely their entire confidence in the king, but 
their abhorrence of the petitions for the assembling of parlia- 
ment; a term which, having been casually used in one ad- 
dress, became the watchword of the whole party.*^ Some 
allowance must be made for the exertions made by the court, 
especially through the judges of assize, whose charges to 
grand jui-ies were always of a political nature. Yet there 
can be no doubt that the strength of the tories manifested it- 
self beyond expectation. Sluggish and silent in its fields, 
like the animal which it has taken for its type, the deep- 
rooted loyalty of the English gentry to the crown may escape 
a superficial observer, till some circumstance calls forth an 
indignant and furious energy. The temper shown in 1G80 
was not according to what the late elections would have led 
men to expect, not even to that of the next elections for the 
parliament at Oxford. A large majoi'ity returned on both 
these occasions, and that in the principal counties as much us 
in corporate towns, were of the whig principle. It appears 
that the ardent zeal against popery in the smaller freeholders 

court stratagem. Examcn of Kennet, originated in Scotland in 1648, and was 

646. The proclamation itself, however, given to those violent covenanters who 

in the Gazette, 12th Dec. 1679, is more opposed the duke of Hamilton's invasion 

strongly worded than we should expect of England in order to restore Charles I. 

from North's account of it, and is by no Somers Tracts, viii. 349. Tory was a 

means limited to tumultuous petitions. similar nickname for some of the wild 

1 [The name of whig, meaning sour Irish in Ulster. — 1S15.] 

milk, as is well known, is said to have - London Gazettes of 1680, passim. 



CnA. 11.-1673-85. VIOLENCE OF TIIE COMMONS. 197 

must have overpowered the natural influence of the superio? 
classes. The middling and lower orders, particularly in 
towns, were clamorous against the duke of York and the 
evil counsellors of the crown. But with the country gentle- 
men popery was scarce a more odious word than fanaticism ; 
the memory of the late reign and of the usurpation was still 
recent, and in the violence of the commons, in the insolence 
of Monmouth and Shaftesbury, in the bold assaults upon 
hereditary right, they saw a faint image of that confusion 
which had once impoverished and humbled them. Mean- 
while the king's dissimulation was quite sufficient for these 
simple loyalists ; the very delusion of the popish plot raised 
his name for religion in their eyes, since his death was the 
declared aim of the conspirators ; nor did he fail to keep alive 
this favorable prejud-ce by letting that imposture take its 
course, and by enforcing the execution of the penal laws 
against some unfortunate priests.^ 

It is among the great advantages of a court in its con- 
tention with the assertors of popular privileges that it can 
employ a circumspect and dissembling policy, which is never 
found on the opposite side. The demagogues of Yjojggce 
faction, or the aristocratic leaders of a numerous of the 
assembly, even if they do not feel the influence '=°™"°°'- 
of the passions they excite, which is rarely the case, are 
urged onwards by their headstrong followers, and would both 
lay themselves open to the suspicion of unfaithfulness and 
damp the spirit of their party by a wary and temperate 
course of proceeding. Yet that incautious violence, to which 
ill -judging men are tempted by the possession of power, must 
in every case, and especially where the power itself is deemed 
an usurpation, cast them headlong. This Avas the fatal error 
of that house of commons which met in October, 1680; and 
to this the king's triumph may chiefly be ascribed. The ad- 
diesses declaratory of abhorrence of petitions for the meeting 
of parliament were doubtless intemperate with respect to tiie 
petitioners ; but it was prepostex'ous to treat them as vio- 
lations of privilege. A few precedents, and those in times 
of much heat and irregularity, could not justify so flagrant 

1 D.iTid Lewis was executed at Usk for and unjust towards these unfortunate 

Baj ins mass, Aug. 27, 1679. State Trials, men than Scroggs. The king, as liis 

vii. 2')(). Other instances occur in the brother tolls us, came unwillingly into 

same volume ; see especially pp. 811, 8.39, these severities to prevent worse. Life 

849, 8o7. Pemberton was more severe of James, 683. 



198 VIOLENCE OF THE COMMONS. Chap. XU. 

an encroachment on the rights of the private subject as the 
commitment of men for a declaration so little affecting thp 
constitutional rights raid functions of parliament.-^ The ex- 
pulsion, indeed, of Withens, their own member, for pro- 
moting one of these addresses, though a violent measure, 
came in point of law Avithin their acknowledged authority. 
But it was by no means a generally received opinion in that 
age that the house of commons had an unbounded juris- 
diction, directly or indirectly, over their constituents. The 
lawyers, being chiefly on the side of prerogative, inclined at 
least to limit very greatly this alleged power of commitment 
for breach of privilege or contempt of the house. It had 
very rarely, in fact, been exerted, except in cases of serving 
legal process on members or other molestation, before the 
long parliament of Charles I. ; a time absolutely discredited 
by one party, and confessed by every reasonable man to be 
full of innovation and violence. That the commons had no 
right of judicature was admitted : was it compatible, many 
might urge, to principles of reason and justice that they 
could, merely by using the words contempt or breach of 
privilege in a warrant, deprive the subject of that liberty 
which the recent statute of Habeas Corpus had secured 
against the highest ministers of the crown ? Yet one Thomp- 
son, a clergyman at Bristol, having preached some virulent 
sermons, wherein he had traduced the memory of Hampden 
for refusing the payment of ship-money, and spoken disre- 
spectfully of queen Elizabeth, as well as insulted those who 
petitioned for the sitting of parliament, was sent tor in 
custody of the sergeant to answer at the bar for his high 
misdemeanor against the privileges of that house ; and was 
afterwards compelled to tind security for his forthcoming 
to answer to an impeachment voted against him on these 
strange charges.^ Many others were brought to the bar, 
not only lor the crime of abhorrence, but for alleged mis- 
demeanors still less affecting the privileges of parliament, 
such as remissness in searching for papists. Sir Robert 
Cann, of Bristol, was sent for in custody of the sergeant- 
at-arms, for publicly declaring that there was no popish, but 
only a presbyterian plot. A general panic, mingled with 

■ Journals, passim. North's Examen, Waller in Withens's place for Westmin- 

377, 561. ster. Ralph, 514. 

2 They went a little too far, however, 3 Journals, Dec. 24, IGSO. 
vhen they actually seated sir William 



Cha. II. — 1073-85. OXFORD TARLIAMENT. 199 

indignation, was diffused through the country, till one 8ta- 
well, a gentleman of" Devonshire, had the courage to refuse 
compliance with the speaker's warrant; and the commons, 
who iiesitated at such a time to risk an appeal to the or- 
dinary magistrates, were compelled to let this contumacy 
go unpunished. If, indeed, we might believe the journals 
of the house, Stawell was actually in custody of the sei'geant, 
though allowed a month's time on account of sickness. Tiiis 
was most probably a subterfuge to conceal the truth of the 
case.^ 

These encroachments, under the name of privilege, were 
exactly in the spirit of the long parliament, and revived too 
forcibly the recoUtction of that awful period. It was com- 
monly in men's mouths that 1G41 was come about again. 
There appeared indeed for several months a very imminent 
danger of civil war. I have already mentioned the projects 
of the duke of York, in case his brother had given way to 
the exclusion bill. There could be little reason to doubt that 
many of the opposite leaders were ready to try the question 
by arms. Reresby has related a conversation he had with 
lord Halifax immediately after the rejection of the bill, 
which shows the expectation of that able statesman that the 
differences about the succession would end in civil war.^ 
The just abhorrence good men entertain for such a calamity 
excites their indignation against, those who conspicuously 
bring it on. And, however desirous some of the court might 
be to strengthen the prerogative by quelling a premature 
rebellion, the commons were, in the eyes of the nation, far 
more prominent in accelerating so terrible a crisis. Their 
votes in the session of November, in 1080, were marked by 
the most extravagant factiousness.' Their con- Oxford 
duct in the short parliament held at Oxford in pariiamont. 

1 Pari. Hist. i. 174. be expelled: 30th Dec. They passed res 

s Reresby's Memoirs, 106. Lord Hali- olutious agaiust a number of persons 

fax and he agreed, he ssays, on eonsidera- by name whom they suspected to have 

tion, that the court party were not only advised the king not to pa-ss the bill of 

the most numerous, but the most active exclusion ; 7th .Ian. I(j80. They resolved 

and wealthy part of the nation. unanimously (10th Jan.) that it is the 

3 It wa.s carried by 219 to 95 (17th opinion of this house that the cicy of 

Nov.) to address the king to remove lord London was burnt in the year 1666 by 

Halifax from his councils and presence the papists, designing thereby to intro- 

forever. They resolved, nem. con., that duce popery and arbitrary power into 

no member of that house should accept this kingdom. They were going on with 

of any ofiSce or place of profit from the more resolutions in the same spirit when 

crown, or any promise of one, during the usher of the black rod appeared to 

such timo as he should continue a mem- prorogue them. Pari. Hist, 
ber, and that all offenders herein should 

VOL. II. — C. 14 



200 IMPEACHMENT OF FITZHARRIS. Chaa XII. 

March, 1081, served still more to alienate the peaceable part 
ot the ( oinmimity. That session of eight days was marked 
by the rejection of a proposal to vest all effective power 
during the duke of York's life in a regent, which, as has 
been already observed, was by no means a secure measure, 
and by a much less justifiable attempt to screen the author 
of a ti'ea-^onable libel from punishment under the pretext of 
impeaching him at the bar of the upper house. It seems 
diifieult not to suspect that the secret instigation of Barillon. 
and even his gold, had considerable influence on some of 
those who swayed the votes of this parliament. 

Though the impeachment of Fitzharris, to which I hav0 
Impeach- J"^' alluded, was in itself a mere work of tem- 
ment of porary faction, it brought into discussion a con- 
for°treasoa sidcrable question in our constitutional law, which 
constitu- deserves notice both on account of its importance 
and because a popular writer has advanced an un- 
tenable proposition on the subject. The commons impeached 
Fitzharris this man of high-treason. The lords voted that 
impeaciied. ^6 should be proceeded against at common law. 
It was resolved, in consequence, by the lower house, " that it 
is the undoubted right of the commons in parliament assem- 
bled to impeach before the lords in parliament any peer or 
commoner for treason, or any other crime or misdemeanor : 
and that the refusal of the lords to proceed in parliament 
upon such impeachment is a denial of justice, and a violation 
of the constitution of parliament." ^ It seems indeed difficult 
to justify the determination of the lords. Certainly the dec- 
laration in the case of sir Simon de Bereford, who having 
been accused by the king, in the fourth year of Edward III., 
before the lords, of participating in the treason of Roger 
Mortimer, that noble assembly protested, " with the assent 
of tlie king in full parliament, that, albeit they had taken 
upon them, as judges of the parliament, in the presence of 
the king, to render judgment, yet the peers who then were 
or should be in time to come were not bound to render judg- 
ment upon others than peers, nor had power to do so ; and 
that the said judgment thus rendered should never be drawn 
to example or consequence in time to come, whereby the 
said peers of the land might be charged to judge others than 
their peers, contrary to the laws of the land ; " certainly, I 

1 Commons' Journals, March 26, 1681. 



Cha. II. -1673-85. IMPEACHMENT OF FITZHAERIS. 201 

Bay, this declaration, even if it araounted to a statute, con- 
cerning which there has been some question,^ was not ne- 
cessarily to be interpreted as applicable to impeachments at 
the suit of the couunous, wherein the king is no ways a 
party. There were several precedents in the reign of Ricli- 
ard II. of such impeachments for treason. • There had been 
more than one in that of Charles I, The objection indeed 
was so novel, that chief-justice Scroggs, having been im- 
peached for treason in the last parliament, though he applied 
to be admitted to bail, had never insisted on so decisive a 
plea to the jurisdiction. And if the doctrine adopted by the 
lords were to be carried to its just consequences, all impeach- 
ment of commonei's must be at an end ; for no distinction is 
taken in the above declaration as to Hereford between trea- 
son and misdemeanor. The peers had indeed lost their 
ancient privilege in cases of misdemeanor, and were sub- 
ject to the verdict of a jury ; but the principle was exactly 
the same, and the right of judging commoners upon im- 
peachment for corruption or embezzlement, which no one 
called in question, was as much an exception from the or- 
dinary rules of law as in the more rare case of high-treason. 
It is hardly necessary to observe that the 29th section of 
Magna Charta, which establishes the right of trial by jury, 
is by its express language solely applicable to the suits of 
the crown. 

This very dangerous and apparently unfounded theory, 
broached upon the occasion of Fitzharris's impeachment by 
the earl of Nottingham, never obtained reception ; and was 
rather intimated than avowed in the vote of the lords that he 
should be proceeded against at common law. But, after the 
revolution, the commons having impeached sir Adam Blair 
and some others of high-treason, a committee was appointed 
to oearch for precedents on this subject; and, after full delib- 
eration, the house of lords came to a resolution that they 
would proceed on the impeachments.'^ The inadvertent 
position therefore of Blackstone,^ that a commoner cannot be 
impeached for high-treason, is not only difficult to be sup- 

1 Pari. Hist. ii. 54. Lord Hale doubted held to imply the presence and assent of 

whether this were a statute. IJut the the coiumous 

judges, in 1689, on being cuiisulted by - Uatsell's Precedents, iv. 54, and Ap- 

the lords, inclined to think that it was pendix, 347. State Trials, viii. 236, and 

one ; arguing, I suppose, from the words xii. 1218. 

' in full parliament," which have been ^ Couiuieutaries, vol. iv. c. 18. 



202 PROSECUTION OF SHAFTESBURY. Ciiap. XIL 

ported upon ancient authorities, but contrary to the latest de- 
tei'mination of the supreme tribunal. 

No satisfactory elucidation of the strange libel for which 
- ,. Fitzharris suffered death has yet been afforded. 

Proceedings . i i -i- • i • • i 

against Ihere is much probabihty m the supposition that 

andColilgZ ^^ ^^'^^ Written at the desire of some in the court, 
in order to cast odium on their adversaries ; a very 
common stratagem of unscrupulous partisans.^ It caused an 
impression unfavorable to the whigs in the nation. The court 
made a dexterous use of that extreme credulity which has 
been supposed characteristic of the English, though it be- 
longs at least equally to every other people. They seized 
into their hands the very engines of delusion that had been 
turned against them. Those perjured witnesses, whom Shaft- 
esbury had hallooed on through all the infamy of the popish 
plot, were now arrayed in the same court to swear treason and 
conspiracy against him.^ Though he escaped by the resolute- 
ness of his grand jury, who refused to find a bill of indictment 
on testimony which they professed themselves to disbelieve, 
and which was probably false, yet this extraordinary deviation 
from the usual practice did harm rather than otherwise to the 
general cause of his faction. The judges had taken care 
that the witnesses should be examined in open court, so that 
the jury's partiality, should they reject such positive testi- 
mony, might become glaring. Doubtless it is, in ordinary 
cases, the duty of a grand juror to find a bill upon the direct 
testimony of witnesses, where they do not contradict them- 

1 Ralph, 5G4, et post. State Trials, The opposite party were a little per- 
223, 427. North's Examen, 274. Fitz- plexed by the necessity of refuting testi- 
barris was an Irish papist, who had evi- mony they had relied upon. In a dia- 
dently had interviews with the king logue, entitled Ignoramus Vindicated, it 
through lady Portsmouth. One Hawkins, is asked, Why were Dr. Gates and others 
afterwards made dean of Chichester for believed against the papi<!ts? and the 
his pains, published a narrative of tiiis best answer the case adiiiits is given : 
case, full of falsehoods. "Because his and their testimony was 

2 State Trials, viii. 759. Roger North's backed by that undeniable evidence of 
remark on this is worthy of him: — Coleman's papers, Godfrey's murder, and 
"Having sworn false, as it is manifest a thousand otherpregnant circumstances, 
■ome did before to one purpose, it is which makes the case much different from 
more likely they swore true to the con- that when people, of very suspected credit, 
trary." Examen, p. 117. And sir Robert swear the grossest improbabilities.'' But 
Sawyer's observation to the same effect the same witness, it is urged, had late- 
is also worthy of him. On College's trial, ly been believed against the papists. 
Oatcs, in his examination for the prison- "What! then," replies the advocate of 
ers, said that Turberville had changed Shaftesbury; "may not a man be very 
sides ; Sawyer, as counsel for the crown, honest and credible at one time, and sii 
answered, "Dr. Gates, Mr. Turberville months after, by necessity, subornation 
has not changed sides, you have; he is malice, or twenty ways, become a inU> 
Btill a witness for the king, you are rious villain ' " 

ag!UO<) him " State Trials, viii. 63i>. 



Cha. II. — 1673-85. TRIAL OF COLLEGE. 203 

selves or each other, and where their evidence is not palpably 
incredible or contrary to his own knowledge. The oath of 
that inquest is forgotten, either where they render themselves. 
as seems too often the case, the mere conduit-pipes of accu- 
sation, putting a prisoner in jeopardy upon such slender evi- 
dence as does not call upon him for a defence ; or where, as 
we have sometimes known in political causes, they frustrate 
the ends of justice by rejecting indictments which are fully 
substantiated by testimony. Whether the grand jury of 
London, in their celebrated ignoramus on the indictment pre- 
ferred against Shaftesbury, liad sufficient grounds for their 
incredulity I will not pretend to determine.^ There was 
probably no one man among them wlio had not implicitly 
swallowed the tales of the same witnesses in the trials lor the 
plot. The nation, however, in general, less bigoted, or at least 
more honest in their bigotry, than those London citizens, was 
staggered by so many depositions to a traitorou.- conspiracy, 
in those who had pretended an excessive loyalty to tiie king's 
person.* Men unaccustomed to courts of justice are natural- 
ly prone to give credit to the positive oaths of witnesses. 
They were still more persuaded when, as in the trial of Col- 
lege at Oxford, they saw this testimony sustained by the ap- 
probation of a judge (and that judge a decent person who 
gave no scandal), and confirmed by the verdict of a jury. 
The gross iniquity practised towards the prisoner in that trial 
was not so generally bruited as his conviction.* There is in 

> Roger Nortli, and the prerogative the crown. State Trials, yiii. 786. See 

writers ia general, speak of this iuijuest also 827 and 835. 

as a scandalous piece of penury enough - If we may believe James II., the pop- 
to justify tlie measures soon afterwards ulace hooted Sh.iftesbury when he waa 
taken agtiinst the city. But Ralph, who, sent to the Tower. MacpUerson, 124; 
at this period of history, is very impar- Life of James, 688. This was an iniprove- 
tial. seems to think the jury warranted ment on the otJit damnnlos. They re- 
by the absurdity of the depositions. It joiced, however, much more, as he ONvns, 
is to be remetiibered that the petty juries at the ignoramus, p. 714. 
had shown themselves liable to intiuii- ^ See College's case in State Tri.ala, 
riation, and that tlie bench was sold to viii. 549 ; and Ilawles's remarks ou it, 723. 
the court. In modern times, such an Ralph. 626. It is one of the worst pieces 
igr.oramus could hardly ever be justified, of judicial iniquity that we find in the 
There is strong reason to believe that the whole collection. The written iustruc- 
ourt had recourse to subornation of tions he had given to his counsel before 
evidence against Shaftesbury Ralph, the trial were tiken away from him, in 
140, et post. And the witnes.ses were order to learn the grounds of his defence, 
chiefly low Irishmen, in whom he was North and Jones, the judges before whom 
not likely to have placed confidence. As he was tried, afforded him no protection, 
to the assTO-iation found among Shaftes- But, besides this, even if the witnesses 
bury's papers, it was not signed by him- had been credible, it does not appear to 
self, nor, as I conceive, treasonable, only me that the facts amountt-d to treason, 
binding the associators to oppose the Roger North outdoes hirn.seif in his justt 
duke of York, ia case of his coming to fication of the proceedingd ou his trial 



204 TRIUMPH OF THE COURT. Chap. XU 

England a remarkable confidence in our judicial proceedings, 
in pai't derived from their publicity, and partly from the in- 
discriniinate manner in which jurors are usually summoned. 
It must be owned that the administration of the two last 
Stuarts was calculated to show how easily this confiding tem- 
per might be the dupe of an insidious ambition. 

The king's declaration of the reasons that induced him to 
rriumph of dissolve the last parliament, being a manifesto 
the court. against the late majority of the house of commons, 
was read in all churches. The clergy scarcely waited for this 
pretext to take a zealous part for the crown. Eveiy one 
knows their influence over the nation in any cause which 
they make their own. They seemed to cliange the war 
against liberty into a crusade. They reechoed from every 
pulpit the strain of passive obedience, of indefeasible heredi- 
tary right, of the divine origin and patriarchal descent of 
monarchy. Now began again the loyal addresses, more 
numerous and ardent than in the last year, which overspread 
the pages of the London Gazette for many months. These 
effusions stigmatize the measures of the three last parliaments, 
dwelling especially on their arbitrary illegal votes against the 
personal liberty of the subject. Their language is of course 
not alike ; yet, amidst all the ebullitions of triumphant loj'al- 
ty, it is easy in many of them to perceive a lurking distrust 
of the majesty to which they did homage, insinuated to the 
reader in the marked satisfaction with which they allude to 
the king's promise of calling frequent parliaments and of 
governing by the laws.^ 

The whigs, meantime, so late in the heyday of their pride, 
lay, like the fallen angels, prostrate upon the fiery lake. The 
scoffs and gibes of libellers, who had trembled before the 
resolutions of the commons, were showered upon their heads. 
They had to fear, what was much worse than the insults of 
these vermin, the perjuries of mercenary informers suborned 
by their enemies to charge false conspiracies against them, 
and sure of countenance from the contaminated benches of 

Examen, p. 587. What would this man i London Gazette, 1681, passim. Ralpt, 
have been in power, when he writes thus 592, has spoken too strongly of their ser- 
in a sort of proscription twenty ye:irs Tility, as if they showed a disposition to 
after the revolution! But in justice it give up altogether every right and privi- 
should be observed that his portraits of lege to the crown. This may be true in 
North and Jones (id. 512 and 517) are a very few instances, but is by no nieana 
excellent specimens of his inimitable, tal- their general tenor. They are exactlj 
ent for Dutch paiuting. high-tory addresses, au^ nothing more. 



CiiA. II. — 1673-85. FORFEITURE OF CHARTERS. 205 

justice. Tlie court, with an artful policy, though with detest- 
able wickedness, secured itself against its only great danger, 
the suspicion of popery, by tlie sacrifice of Plunlict, the titu- 
lar archbishop of Dublin,-^ The execution of tliis worthy and 
i'.uiocent person cannot be said to have been extorted from 
the king in a time of great difficulty, like that of lord Staf- 
ford, lie was coolly and deliberately permitted to suffer 
death, lest the current of loyalty, still sensitive and susi)iciou:j 
upon the account of religion, might be somewhat checked in 
its course. Yet those who heap the epithets of merciless, in 
human, sanguinary, on the whig party for the impeaclimeni 
of lord Stafford, in whose guilt they fully believed, seldom 
mention, without the characteristic distinction of " good 
natured," that sovereign who permitted the execution of 
Plunket, of whose innocence he was assured.^ 

The hostility of the city of London, and of several othei 
towns, towards the court, degenerating no doubt 
into a factious and indecent violence, gave a pre- 0° the'""* 
lext for the most dangerous aggression on public charter of 

^■l , ., , 1 • ^1 i. • 'T^i London, and 

liberty that occurred m the present reign. Ihe of other 
power of the democracy in that age resided chiefiy places. 

1 state Trials, viii. 447. Chief-justice In reference to lord Stafford, I will 

Pembei'ton, by whom he was tried, had here notice that lord .John Russell, in h 

stro;ig prejudices against the papists, passage deserving very high praise, has 

tliough well enough disposed to serve the shown rather too much candor in cen- 

eourt in some respects. suring his ancestor (p. 140) on account 

'•^ The king, James says in 1679, was of the support he gave (if in fact he did 
convinced of the falseliood of the plot, so, for the evidence seems weak) to the 
"while the seemi.ig necessity of his af objection raised by the sheriffs, Betheil 
fairs made this unfortunate prince — tor and Cornish, with respect to the mode of 
so he may well be termed in this con- Stafford's execution. The king having 
juncture — think he could not be safe remitted all the sentence except the be- 
but by consenting every day to the exe- heading, these magistrates thought fit to 
cution of those he knew in his heart to consult the house of commons. Hume 
bo most innocent ; and as for that notion talks of Uussell's seconding this " bar- 
of letting the law take its cour.se. it was barous scruple," as he calls it. and im- 
8uch a piece of ciisuistry a.s had been putes it to faction. But, notwithstand- 
&tal to the king his father," &c. 562. ing the epithet, it is certain that the only 
If this was blamable in 1679, how much question w:is between deiith by the cord 
more in 1681 ! and the axe; and if Stafford liad been 

Temple relates, that, havin-r objected guilty, as lord Russell was convinced, of 

to leaving some priests to the law, as the a most atrocious treason, he could not 

bouse of commons had desired in 1679. deserve to be spared the more ignomin- 

Halifax said he would tell every one he ions punishment. The truth is, which 

was a papist if he did not concur ; and seems to have escaped both these writers, 

that the plot must be treated as if it that, if the king could remit ;i part of 

were true, whether it was so or not : p. the sentence upon a parliamentary im- 

839 (folio edit.). A vile maxim indeed I peachment, it might considerably affect 

But as Halifax had never showed any the question whether he could not grant 

want of candor or humanity, and voted a pardon, which the commons haj 

lord Stafford not guilty next year, wo denied, 
may doubr, whether Temple has repre- 
■ented this quite exactly. 



206 FORFEITURE OF CHARTERS. Chap XII 

in the corporations. These returned, exclusively or princi- 
pally, a majority of the representatives of the commons. So 
long as they should be actuated by that ardent spirit of prot- 
estantism and liberty which prevailed in the middling classes, 
there was little prospect of obtaining a parliament that would 
cooperate with the Stuart scheme of government. The ad- 
ministration of justice was very much in the hands of their 
magistrates, especially in Middlesex, where all juries are 
returned by the city sheriffs. It was suggested, therefore, 
by some crafty lawyers that a judgment of forfeiture obtained 
against the corporation of London would not only demolish that 
citadel of insolent rebels, but intimidate the rest of England 
by so striking an example. True it was that no precedent 
could be found for the forfeiture of corporate privileges. 
But general reasoning was to serve instead of precedents, 
and there was a considerable analogy in the surrenders of 
the abbeys under Henry VIII., if much authority could be 
allowed to that transaction. An information, as it is called, 
quo warranto, was accordingly brought into the court of 
king's bench against the corporation. Two acts of the 
common council were alleged as sufficient misdemeanors to 
warrant a judgment of forfeiture : one, the imposition of cer- 
tain tolls on goods brought into the city markets by an ordi- 
nance or by-law of their own ; the other, their petition to the 
king in December, 1679, for the sitting of parliament, and 
its publication throughout the country.* It would be foreign 
to the purpose of this work to inquire whether a corporation 
be in any case subject to forfeiture, the affirmative of which 
seems to have been held by courts of justice since the revo- 
lution ; or whether the exaction of tolls in their markets, in 
consideration of erecting stalls and standings, wei*e within 
the competence of the city of London ; or, if not so, whether 
it were such an offence as could legally incur the penalty of 
a total forfeiture and disfranchisement ; <;ince it was manifest 
that the crown made use only of this additional pretext in 
order to punish the corporation for its address to the king. 
The language, indeed, of their petition had been uncourtly, 
and what the adherents of prerogative would call insolent ; 
but it was at the worst rather a misdemeanor, for which the 
persons concerned might be responsible, than a breach of 
trust reposed in the corporation. We are not, however, so 

1 See this petition, Somen Tracts, Tiii. 144. 



Cha. 11.- 1673-85. FORFEITURE OF CHARTERS. 207 

much concerned to argue the matter of law in this question, 
as to remark the spirit in which the attack on this stronghold 
of popular liberty was conceived. The court or" king's bench 
pror.'junced judgment of forfeiture against the corporation ; 
but this judgment, at the request of the attorney-general, 
was only recorded ; the city continued in appearance to pos- 
sess its corporate franchises, but upon submission to certain 
regulations : namely, that no mayor, sheriff, recorder, or 
other ciiief officer, should be admitted until approved by the 
king ; that, in the event of his twice disapproving their 
choice of a mayor, he should himself nominate a fit person, 
and the same in case of sheriffs, without waiting for a second 
election ; that the court of aldermen, with the king's permis- 
sion, might remove any one of their body ; that they should 
have a negative on the elections of common-councilmen, and, 
in case of disapproving a second choice, have themselves the 
nomination. The corporation submitted thus to purcliase the 
continued enjoyment of its estates at the expense of its mu- 
nicipal independence ; yet, even in the prosti'ate condition of 
the whig party, the question to admit these regulations was 
carried by no great majority in the common councils.^ The 
city was, of course, absolutely subservient to the court from 
this time to the revolution. 

After the fall of the capital it was not to be expected that 
towns less capable of defence should stand out. Informations 
quo warranto were brought against several corporations, and 
a far greater number hastened to anticipate the assault by 
voluntary surrenders. It seemed to be recognized as law by 
the judgment against London that any irregularity or nws- 
use of power in a corporation miglit incur a sentence of for- 
feiture, and few could boast that they were invulnerable at 
every point. The judges of assize in their circuits prosti- 
tuted their influence and authority to forward this and every 
other encroacliment of the crown. Jeffreys, on the northern 
circuit, in 1G84, to use the language of Charles II.'s most 
unblushing advocate, " made all the charters, like the walls 
of Jericho, fall down before him, and returned laden with 
surrenders, the spoils of towns,"^ They received, instead, 
new charters, framing the constitution of these municipaiitiea 

1 state Trials, Tiii. 1039-1340. Ralph, division honorable to the spirit of Ul« 
717. The majority was but 104 to 8t} ; a citizonH. 

2 North's Exameu. 626. 



208 PROJECTS OF RUSSELL AND SIDNEY. Chap. XII 

in a more oligarchical model, and reserving to the crown the 
first appointm(Mit of those who were to form the governing 
part of the corporation. These changes were gradually 
brought al)Out in the last three years of Charles's reign and 
in the beginning of the next. 

There can be nothing so destructive to the English consti- 
^^. J. tution, not even the introduction of a military 
lord Russell force, as the exclusion of the electoral body from 
tad Sidney, ^j^gjj. franchises. The people of this country are, 
by our laws and constitution, bound only to obey a parlia- 
ment duly chosen ; and this violation of charters, in the 
reigns of Charles and James, af)pears to be the great and 
leading justification of that event which drove the latter 
from the throne. It can therefore be no matter of censure, 
in a moral sense, that some men of pure and patriotic virtue, 
mingled, it must be owned, with others of a far inferior tem- 
per, began to hold consultations as to the best means of 
resisting a government which, whether to judge from these 
proceedings, or from the language of its partisans, was aim- 
ing without disguise at an arbitrary power. But as resist- 
ance to established authority can never be warrantable until 
it is expedient, we could by no means approve any schemes 
of insurrection that might be projected in 1682, unless we 
could perceive that there was a fair chance of their success. 
And this we are not led, by what we i-ead of tRe spirit of 
those times, to believe. The tide ran violently in another 
direction ; the courage of the whigs was broken ; their ad- 
versaries were strong in numbers and in zeal. But hence it 
is reasonable to infer that men like lord Essex and lord Rus- 
sell, with so much to lose by failure, with such good sense, 
and such abhorrence of civil calamity, would not ultimately 
have resolved on the desperate issue of arms, though they 
might deem it prudent to form estimates of their strengih, 
and to knit together a confederacy which absolute necessity 
might call into action. It is beyond doubt that the supposed 
conspirators had debated among themselves the subject of an 
insurrection, and poised the chances of civil war. Thus 
much the most jealous lawyer, I presume, will allow might 
be done, without risking the penalties of treason. They had, 
however, gone farther ; and by concerting measures in differ- 
ent places as well as in Scotland, for a rising, though contin- 
gently, and without any fixed determination to carry it into 



v^nA. II. — 1673-85. TRIAL OF LORD RUSSELL, 209 

effect, most probably (if the whole business had been dla- 
closed in testimony) laid themselves open to the law, accord- 
ing to the construction it has frequently received. There ia 
a considerable diflftculty, after all that has been written, in 
stating the extent of their designs ; but I may think we may 
assume that a wide-spreading and formidable insurrection waa 
for several months in agitation.^ But the difficulties and 
hazards of the entei-prise had already caused lord Russell and 
lord Essex to recede from the desperate counsels of Shaftes- 
bury ; and but for the unhappy detection of the conspiracy 
and the perfidy of lord Howard, these two noble persons, 
whose lives -were untimely lost to their country, might have 
survived to join the banner and support the throne of Wil- 
liam. It is needless to observe that the minor plot, if we 
may use that epithet in reference to the relative dignity of 
the conspirators, for assassinating the king and the duke of 
York, had no immediate connection with the schemes of Rus- 
sell, Essex, and Sydney.^ 

But it is by no means a consequence from the admission 
we have made that the evidence adduced on lord xheir trial 
Russell's trial was sufficient to justify his convic- 
tion.* It appears to me that lord Howard, and perhaps 

1 Lady Russell's opinion was that " it obtained credit with the enemies of the 

was no more than what her lord confessed, court that lord Essex was murdered; 

talk — and it is possible that talk going and some evidence wius brought forward 

so far as to consider, if a remedy for sup- by the zeal of one Braddon. The late 

posed evils miglit be sought, how it could editor of the State Trials seems a little 

be formed." Life of Lord Kussell, p. 266. inclined to revive this report, which even 

It is not easy, however, to talk long in Harris (Life of Charles, p. 352) does not 

this uiiiuner about the horc of treason venture to accredit; and I am surprised 

without iucurriug the penalties of it. to find lord John Kussell ob.serve, "It 

- See tills busiue.ss well di.scussed by would be idle, at the present time, to 

the acute and indefatigable Ralph, p. 722, pretend to give any opinion on the sub- 

and by Lord John Kussell, p. 253. See ject : " p. 182. This I can by no means 

also State Trials, ix. 358, et post. There admit. We have, on the one side, some 

appears no cause for doubting the reality testimonies by children, who frequently 

of what is called the Kye-house Plot, invent and persist in falsehoods with no 

The ca.se against Walcot. id. 519, was conceivable motive. But, on the other 

pretty well proved; but his o\i\\ confes- hand, we are to suppose that Charles U. 

sion completely hanged him and his and the duke of York caused a detest- 

friends too. His attainder was reversed able murder to be perpetrated on one 

after the revolution, but only on account towards whom they had never shown 

of some technical errors, not essential to any hostility, and in whose death they 

the merits of the ca.se. had no interest. Each of these princes 

s State Trials, ix. 577. Lord Essex cut had faults enough ; but I may venture 

his throat in the Tower. He was a man to .say that they were totilly incapable ol 

of the most excellent qualities, but sub- such a crime. One of the presumptire 

ject to constitutional melancholy, which arguments of Briddon, in a pamphlet 

overcame his fortitude ; an event the published long afterwards, is, that the 

more to be deplored, as there seems to king and his brother were in the Towef 

haTu been no po.s3ibility of his being on the morning of lord E.ssex's death. If 

convicted. A suspicion, as is well known, this leads to anything, we are to beliuvl 



210 TRIAL OK LORD KUfSSKLL. Chap. XIL 

Kuinsey, were unwilling witnesses ; and that the former, as 
io frequently the case with those who beti-ay their friends in 
order to save their own lives, divulged no more than was 
extracted by his own danger. The testimony of neither 
witness, esi)ecially Howard, was given with any degree of 
that precision which is exacted in modern times ; and, as we 
now read the trial, it is not probable that a jury in later ages 
would have found a verdict of guilly, or would have been 
advised to it by the court. But, on the other hand, if lord 
Howard were really able to prove more than he did, which 
I much suspect, a better-conducted examination would prob- 
ably have elicited facts unfavorable to the prisoner which 
at present do not appear. It may be doubtful whether any 
overt act of treason is distinctly proved against lord Russell, 
except his concurrence in the project of a rising at Taunton, 
to which Rumsey deposes. But this, depending on the oath 
of a single witness, could not be sufficient for a conviction. 

Pemberton, chief-justice of the common pleas, tried this 
illustrious prisoner wilh more humanity than was usually 
displayed on the bench ; but, aware of his precarious tenure 
in office, he did not venture to check the counsel for the 
crown. Sawyer and Jeffreys, permitting them to give a great 
body of hearsay evidence, with only the feeble and useless 
I'emark that it did not affect the prisoner.^ Yet he checked 
lord Anglesea, when he offered similar evidence for the de- 
fence, in his direction to the jury, it deserves to be re- 
marked that he by no means advanced the general proposi- 
tion which better men have held, that a conspiracy to levy 
war is in itself an overt act of compassing the king's death ; 
limiting it to cases where the king's person might be put in 
danger, as, in the immediate instance, by the alleged scheme 



Charles 11., like the tyrant in a Grub- 1838. For though this may imply no 

street tragedy, came to kill his prisoner more than his suicide, it will generally 

with his own hands. Any man of ordi- be construed iu another sense. And 

nary understanding (which seems not to surely the critical judgment cannot be 

have been the case with Mr. Braddon) satisfied with evidence which might 

must perceive that the circumstance weigh, as I have heard it did, with the 

tends to repel suspicion rather than the pardonable prejudices of a descendant, 

contrary. See the whole of this, includ- — 1845.] 

iug Braddon's pamphlet, in Stiite Trials, l SUite Trials, 615. Sawyer told lord 

ix. 1127. [I am sorry to read in an ar- Russell, when he applied to have his trial 

tide of the Edinburgh lleview by an elo- put otf, that he would not have given the 

quent friend, " Essex added a yet sadder king an hour's notice to save his life, 

and more fearful story to the bloody Id. 582. Yet he could not pretend that 

chronicles of the Tower." Macaulay's the prisoner had any concern in the a«- 

Fssays, iii. 93, and EdiuburgU lieviuw, sassiuatiou ulot. 



CHA.n. -1073-85. TRIAL OF ALGERNOX SmNEY. 21] 

of seizing liis guards.* His Innguagc, indeed, as recorded in 
the printed trial, was such as might have produced a verdict 
of acquittal fioni a jury tolerably disposed towards the pris- 
oner ; but the sheriffs, North and Rich, who had been ille- 
gally thrust into office, being men wholly devoted to the pre 
rogiitive, had taken care to return a panel in wliom they 
could confide.^ 

Tlie trial of Algernon Sidney, at Avhich Jeffreys, now 
raised to the post of chief-justice of the king's bench, pre- 
sided, is as fanniliar to all my readers as that of lord Russell.'* 
Their names have been always united in grateful veneration 
and sympathy. It is notorious that Sidney's conviction was 
obtained by a most illegal distortion of the evidence. Be- 
sides lord Howard, no living witness could be produced to 
the coii.-piracy for an insurrection ; and though Jeffreys per- 
mitted two others to prepossess the jury by a second-hand 
story, he was compelled to admit that their testimony could 
not directly affect the prisoner.* The attoi-ney-general, 
therefore, had recourse to a paper found in his house, which 
was given in evidence, either as an overt act of treason by 
its own nature, or as connected with the alleged conspiracy; 
for though it Avas only in the latter sense that it could be 
admissible at all, yet Jeffreys took care to insinuate, in his 
charge to the jury, that the doctrines it contained were 
treasonable in themselves, and without reference to other 
evidence. In regard to truth, and to that justice which can- 
not be denied to the worst men in their worst actions, I must 
observe that the common accusation against the court in this 
trial, of having admitted insufficient proof by the mere com- 

» The act annulling lord Rufsell's at- 932. These two men ran away at th« 

tninder recites him tohaveheen "wrong- revolution; hut Roger North vindicates 

fully convicted hy partial and unjust their characters, and those who Irust in 

constructions of law." State Trials, ix. him may think them honest. 

69"). Several pamphlets were published '■> State Trials, ix. 818. 

after the revolution by sir Robert Atkins * State Trials, ix. 846. Yet in sura- 

and sir John llawlc-s against the conduct ming up the evidence he repeated all 

of the court in this trial, and by sir West and Keeling had thus said at 

Bartholomew Shower in behalf of it. secondhand, without reminding the jury 

The.se are in the Swte Trials. But llolt, that it was not legal testimony. Id. 899. 

by laying down the principle of construe- It would bv said by his advocates, if any 

tive trea-son in Ashton's ca.se, established are left, that the.se witnesses must have 

forever the legality of Pemberton's doc- been left out of the question, since there 

trine, and indeed carried it a good deal could otherwi.se have been no dispute 

farther about the written paper. But they wer« 

- There seems little doubt that the undoubtedly intended to prop up How- 
juries were packed through a conspiracy ard"8 evidence, which had been so much 
of the sheriffs with Burton and Graham, shaken by his previous declaration that 
toUcitors for the crown. State Trials, ix. he knew of no conspiracy. 



•212 CHARACTER OF SIDNEY Chap XIl 

parison of handwriting, though alleged, not only in most of 
our historians, but in the act of parliament reversing Sid- 
ney's attainder, does not appear to be well founded ; the 
testimony to that fact, unless the printed trial is falsified in 
an extraordinary degree, being such as would be received at 
present.^ We may allow, also, that the passages from this 
paper, as laid in the indictment, containing very strong as- 
sertions of the right of the peoj)le to depose an unworthy 
king, might by possibility, if connected by other evidence 
with the conspiracy itself, have been admissible as presump- 
tions for the jury to consider whether they had been written 
in furtherance of that design. But when they came to be 
read on the trial wnth their context, though only with such 
parts of that as the attorney-general chose to produce out of 
a voluminous manuscript, it was clear that they belonged to 
a theoretical work on government, long since perhaps wi-it- 
ten, and incapable of any bearing upon the other evidence." 
The manifest iniquity of this sentence upon Algernon Sid- 
ney, as well as the high courage he displayed throughout 
these last scenes of his life, have inspired a sort of enthusi 
asm for his name, which neither what we know of his story, 
nor the opinion of his contemporaries, seems altogether to 
warrant. The crown of martyrdom should be suffered per- 
haps to exalt every virtue, and efface every defect, in pa- 
triots, as it has often done in saints. In the faithful mirror 
of history Sidney may lose something of this lustre. He 
possessed no doubt a powerful, active, and undaunted mind, 

1 This is pointed out, perhaps for the Hayes's case, State Trials, x. 312, though 

first time, in an excellent modern law- the prisoner's handwriting to a letter 

booli, Phillipps's Law of Eviilence. Yet was proved in the usual way by -Persons 

the act for the reversal of Sidney's at- who hart seen him write, yet this letter 

tainder declares in the preamble that was also shown to the jury, along with 

" the paper, supposed to be his hand- some of his acknowledged writing, for 

writing, was not proved by the testimony the purpose of their comparison. [See 

of any one witness to be written by him, also the trials of the seven bishops Id. 

but the jury was directed to believe it xii. 295] It is possible, therefore, that 

by comparing it with other writings of the same may have been done on Sid- 

the said Algernon." State Trials, 997. ney's trial, though the circumstance 

This does not appear to have been the does not appear. Jeffreys indeed says, 

case ; and though Jeffreys is said to have " Comparison of hands was allowed for 

garbled the manuscript trial before it good proof in Sidney's case." Id. 313. 

was printed (for all the trials at this time But I do not believe that the expression 

were published by authority, which was used in that age so precisely as it is 

makes them much better evidence at present ; and it is well known to law- 

against the judges than for them), yet yers that the rules of evidence on this 

he can hardly have substituted so much subject have only been distinctly laia 

testimony mthout its attracting the no- down within the memory of the present 

tice of Atkins and Ilawles, who wrote generation, 

kfter the revolution. However, in ' See Harris's Lives, t. 817 



Cha. II. — 1673-85. PROSTITUTION OF JUSTICE. 213 

stored with extensive reading on the topics in wliicli he de- 
hghted. But I aving proposed one only object for his polit- 
ical conduct, tlie establisliment of a republic in England, hia 
pride and inflexibility, though they gave a dignity to his 
character, rendered his views nai-rower and his temper un- 
accommodating. It was evident to every reasonable man 
that a republican government, being adverse to the prepos- 
sessions of a great majority of the people, could only be 
brought about and maintained by the force of usurpation. 
Yet for this idol of his speculative hours he was content to 
i-acrifiee the liberties of Europe, to plunge the country in 
civil war, and even to stand indebted to France for protec- 
tion, lie may justly be suspected of having been the chief 
promoter of the dangerous cabals with Barillon ; nor could 
any tool of Charles's court be more sedulous in r.'^presentiiW 
the aggressions of Louis XIV. in the Netherlands as indif- 
ferent to our honor and safety. 

Sir Thomas Armstrong, who had fled to Holland on the 
detection of the plot, was given up by the States. A sentence 
of outlawry, which had passed against liim in his absence, 
is equivalent, in cases of treason, to a conviction of the crime. 
But the law allows the space of one year, during which the 
party may surrender himself to take his trial. Armstrong, 
when brought before the court, insisted on this right, and 
demanded a trial. Nothing could be more evident, in point 
of law, than that he was entitled to it ; but Jeffi-eys, with 
inhuman rudeness, treated his claim as wholly unfounded, 
and would not even suffer counsel to be heard in his behalf. 
He was executed accordingly without trial.* But it would 
be too prolix to recapitulate all the instances of brutal in- 
justice, or of cowardly subserviency, which degraded the 
English lawyers of the Stuart period, and never so infa- 
mously as in these last jears of Charles II. From this pros- 
titution of the tribunals, from the intermission of parliaments, 
and the steps taken to render them in future mere puppets of 
the crown, it was plain that all constitutional securities were 
at least in abeyance ; and those who felt themselves most 
obnoxious, or whose spirit was too high to live in an en- 
slaved country, retired to Holland as an asylum in which 
they might wait the occasion of better prospects, or, at the 
worst, breathe an air of liberty. 

1 state Trials, x. 105 



214 TORYISM OF THE CLERGY. Chap XXl 

Meaiiwliile the prejudice against the whig party, which 
had reached so great a height in 1681, was still further 
enhanced by the detection of the late conspiracy. The 
atrocious scheme of assassination alleged against Walcot and 
some others who had suffered was blended by the arts of 
the court and clergy, and by the blundering credulity of the 
gentry, with those less heinous projects ascribed to lord 
Russell and his associates.^ These projects, if true in their 
full extent, were indeed such as men honestly attached to 
the government of their country could not fail to disapprove. 
For this pui-pose a declaration full of malicious insinuations 
was ordered to be read in all churches."-^ It was genei-aliy 
commented upon, we may make no question, in one of those 
loyal discourses, which, trampling on all truth, charity, and 
moderation, had no other scope than to inflame the hearers 
against non-conforming protestants, and to throw obloquy on 
the constitutional privileges of the subject. 

It is not my intention to censure, in any strong sense of 
the word, the Anglican clergy at this time for their assertion 
High-tory ^^ absolute non-resistance, so far as it was done 
principles of without calumuy and insolence towards those of 
the clergy, another way of thinking, and without self-interested 
adulation of the ruling power. Their error was very dan- 
gerous, and had nearly proved destructive of the whole 
constitution ; but it was one which had come down with high 
recommendation, and of which they could only perhaps be 
undeceived, as men are best undeceived of most errors, hy 
experience that it might hurt themselves. It was the tene 
of their homilies, their canons, their most distinguisiied di 
vines and casuists ; it had the apparent sanction of the leg- 
islature in a statute of the present reign. Many excellent 
men, as was shown after the revolution, who had never made 
use of this doctrine as an engine of faction or private in- 
terest, could not disentangle their minds from the arguments 
or the authority on which it rested. But by too great a 
number it was eagerly brought forward to serve the purposes 
of arbitrary power, or at best to fix the wavering protestant- 

1 The grand jury of Northampton- first families, as the names of Montagu, 

ehire, in 16S3, " present it as very ex- Langham, &c., show. Somers Tracts, 

pedient, and necessary for securiri!; the viii. 409. 

peace of this couutry, that all ill-aSected - Halph, p 768. Harris'g Lires, v 

persons may give security for the peace ;" 321. 
specifying a number of gentlemen of the 



Cha. II. — 1073-85. PASSIVE OBEDIEXCF 215 

ism of the court by professions of unimpeachnble loraltj. 
To this motive, in fact, we may trace a good deal of the 
vehemence with which the non-resi.>ting principle had been 
originally advanced by the church of England under the 
Tudors, and was continually urged under the Stuarts. If 
we look at the tracts and sermons published by both parties 
after the restoration, it will appear manifest that the Romish 
and Anglican churches bade, as it were, against each other 
for the favor of the two royal brothers. The one appealed 
to its acknowledged principle, while it denounced the pre- 
tensions of the holy see to release subjects from their alle- 
giance, and the bold theories of popular government which 
Mariana and some other Jesuits had promulgated. The 
other retaliated on the first movers of the Reformation, and 
expatiated on the usurpation of lady Jane Grey, not to say 
Elizabeth, and the republicanism of Knox or Calvin. 

From the era of the exclusion-bill especially, to the death 
of Chai'les II., a number of books were published passive 
in favor of an indefeasible hereditary right of the o^J»«"ce. 
crown, and of absolute non-resistance. These were, how- 
ever, of two very different classes. The authors of the first, 
who were perhaps the more numerous, did not deny the 
legal limitaiions of monarchy. They admitted that no one 
was boimd to concur in the execution of unlawful commands. 
Hence the obedience they deemed indispensable was denomi- 
nated passive ; an epithet, which in modern usage is little 
more than redundant, but at that time made a sensible dis- 
tinction. If all men should confine themselves to this line 
of duty, and merely refuse to become the instruments of such 
unlawful commands, it was e\ident that no tyranny could 
be carried into eifect. If some should be wicked enough to 
cooperate against the liberties of their country, it would still 
be the bounden obligation of Christians to submit. Of this, 
which may be reckoned the moderate party, the most emi- 
nent w(ae llickes, in a treatise called Jovian, and Sherlock, 
in his case of resistance to the supreme powers.^ To this 

> This booli of Sherlock, printed in defersiTe, nf^inst the king, that the bu- 

1684, is the most able treatise on that preme power is in him ; for he who U 

side. His proposition is, that " sovereign unaccountable and irresistible is supreme, 

princes, or the supreme power in any There are some, he owns, who contend 

nation, in whomsoever placed, is in all that the hi'jher powers mentioned by St. 

cases irresistible.'' He infers, from the Paul meant the law, and tliat when 

itatute 13 Car. 2. declaring it unlawful princes violate the laws we may defer.d 

under any pretence to wage war. even their legal authority against their personal 
TOL. U. — C. 15 



216 



WRITERS IN FAVOR OF 



Chai.XII. 



also must have belonged archbishop Sancroft, and the great 
body of nonjuring clergy who had refused to read the 
declaration of indulgence under James II., and whose con- 
duct in that respect would be utterly absurd, except on the 
supposition that there existed some lawful boundaries of th(5 
royal authority. 

But besides these men, who kept some measures with the 
constitution, even while, by their slavish tenets, 
they laid it open to the assaults of more intrepid 
enemies, another and a pretty considerable class 
of writers did not hesitate to avow their abhor- 
rence of all limitations upon arbitrary power. Brady went 
back to the primary sources of our history, and endeavored 
to show thai Magna Charta, as well as every other constitu- 
tional law, were but rebellious encroachments on the ancient 
uncontrollable imprescriptible prerogatives of the monarchy. 
His writings, replete with learning and acuteness, and in 
some respects with just remarks, though often unfair and 
always partial, naturally produced an effect on those who 



Some con' 
tend for 
absolute 
power. 



usurpations. lie answers this very feebly. 
" No law can come into the notion and 
definition of supreme and sovereign pow- 
ers ; such a prince is under the direction, 
but cannot possibly be said to be under 
the government, of the law, because tliere 
is no superior power to take cognizance 
of his breach of it, and a law has no au- 
thority to govern where there is no power 
to punish : " p. 114. " These men think," 
he says (p. 126), " that ail civil authority 
\s Ibunded in consent, as if there were no 
natural lord of the world, or all mankind 
came free and independent into the world. 
This is a contradiction to what at other 
times they will grant, that the institution 
)f civil power and authority is from God ; 
and indeed, if it be not, I knnsv not how 
any prince can justify the taking away 
the life of any man, whatever crime he 
has been guilty of. For no man has 
power of his own life, and therefore can- 
not give this power to another ; which 
proves that the power of capital punish- 
ments cannot result from mere consent, 
but from a superior authority, which is 
lord of life and death." Tliis is plausibly 
urged, and is not refuted in a moment. 
He next comes to an objection, which 
eventually he was compelled to .admit, 
with some discredit to his consistency and 
disinterestedness. "'Is the power of 
Tictoi-ious rebels and usurpers from God ? 
Did Olivci Cromwell receive his power 
from Qod ? theu it seems it was unlawful 



to resist him too, or to conspire against 
him ; then all those loyal subjects who 
refused to submit to him when he had 
got the power in his hands were rebels 
and traitors.' To this I answer, that the 
most prosperous rebel is not the higher 
powers, while our natural prince, to 
whom we owe obedience and subjection, 
is in being. And therefore, though .such 
men may get the power into their hands 
by God's permission, yet not by God's 
ordinance ; and he who resists them does 
not resist the ordinance of God, but the 
usurpations of men. In hereditary king 
doms the king never dies, but the same 
minute that the natural per.son of one 
king dies, the crown descends upon the 
next of blood ; and therefore he who re- 
belleth against the father, and murders 
him, continues a rebel in the reign of the 
son, which commences with his father's 
death. It is otherwise, indeed, where 
none can pretend a greater title to the 
crown than the usurper, for there pos- 
session of power seems to give a right." 
P. 127. 

Sherlock began to preach in a very dif- 
ferent manner as soon as James showed 
a disposition to set up his own church. 
" It is no act of loyalty," he told the 
house of commons. May 29, 1685, to ac- 
commodate or compliment away oui 
religion and its legal Eecurities." Oood 
Advice to the Pulpits. 



CiiA. ri.--lU73-o.. ABSOLUTE MONARCHY. 217 

had been accustomed to value the constitution rather for it. 
presumed antiquity than its real excellence. But the author 
most in vogue with the partisans of despotism was sir Robert 
Filmer. He had lived before tlie civil war, but sir Robert 
his posthumous writings came to light about this '''''"'^'■• 
period. They contain an elaborate vindication of what was 
called the patriarchal scheme of government, which, reject- 
ing with scorn that original contract whence human society 
had been supposed to spring, derives all legitimate authority 
from that of primogeniture, the next heir being king by di- 
vine right and as incapable of being restrained in his sov- 
ereignty as of being excluded fiom it. " As kingly power," 
he says, " Ls by the law of God, so hath it no inferior power 
to limit it. The father of a family governs by no other law 
than his own will, not by the laws and wills of his sons and 
servants." ^ " The direction of the law is but like the advice 
and direction which the king's council gives the king, which 
no man says is a law to the king." ^ " General laws," he 
observes, " made in parliament, may, upon known respects 
to the king, by his authority be mitigated or suspended upon 
causes only known to him ; and by the coronation oath, he is 
only bound to observe good laws, of which he is the judge."* 
" A man is bound to obey the king's command against law, 
nay, in some cases, against divine laws." * In another trea- 
tise, entitled the Anarchy of a Mixed or Limited Monarchy, 
he inveighs, with no kind of reserve or exception, against 
the regular constitution ; setting off with an assumption that 
the parliament of England was originally but an imitation of 
the States-general of France, which had no further power 
than to present requests to the king.^ 

These ti-eatises of Filmer obtained a very favorable recep- 
tion. "We find the patriarchal origin of government frequents 
ly mentioned in the publications of this time as an undoubted 
truth. Considered with respect to his celebrity rather than 
his talents, he was not, as some might imagine, too ignoble an 
adversary for Locke to have combated. Another person, far 
superior to Filmer in political eminence, undertook at the 
oame time an unequivocal defence of absolute monarch} 
This was sir George Mackenzie, the famous lord- gji. George 
advocate of Scotland. In his Jus Regiura, pub- Miickoazie 

1 p. 81. 2 p. 95. g:reat<>r length, entitled the Freeholder'f 

* P. 98, 100. * P. 100. Gniud Ttuiuest, wa.s published in 16795 

* This treatise, subjoined to one of but tlie Patriarcha not till 1685- 



218 DECREE OF OXFORD UNIVERSITY. Chap. XII 

lished in 1 684, and dedicated to the university of Oxford, he 

maiiitnins that " moiuiivliy in its nature is absolute, aud con- 
Bequently these pretended limitations are against the nature 
of monarchy." * " Whatever proves monarchy to be an ex- 
cellent government, does by the same rea-^on prove absolute 
monarchy to be the best government ; for if monarchy be to 
be commended because it prevents divisions, then a limited 
monarchy, which allows the people a share, is not to be com- 
mended, because it occasions them ; if monarchy be com- 
mended because there is more expedition, secresy, and other 
excellent qualities to be found in it, then absolute monarchy 
is to be commended above a limited one, because a limited 
monarch must impart his secrets to the people, and must de- 
lay the noblest designs, until malicious and factious spirits be 
either gained or overcome ; and the same analogy of reason 
will hold in reflecting upon all other advantages of monarchy, 
the examination whereof I dare trust to every man's own 
bosom." '-^ We can hardly, after this, avoid being astonished 
at the effrontery, even of a Scots crown lawyer, when we 
read in the pi-eface to this very treatise of Mackenzie, "Un- 
der whom can we expect to be free from arbitrary govern- 
ment, when we were and are afraid of it under king Charles 
T. and king Charles 11. ? " 

It was at this time that the university of Oxford published 
their celebrated decree against pernicious books 
ti^^uuiver- ^^^ damnable doctrines, enumerating as such 
«ty of above twenty propositions, which they anathema- 

tized as false, seditious, and impious. The first of 
these is, that all civil authority is derived originally from the 
people ; the second, that there is a compact, tacit or express, 
between the king and his subjects : and others follow of the 
same description. They do not explicitly condemn a limited 
monarchy, like Filmer, but evidently adopt his scheme of 
primogenitary right, which is, perhaps, almost incompatible 
with it. Nor is there the slightest intimation that the uni- 
versity extended their censure to such praises of despotic 
power as have been quoted in the last pages.' This decree 
was publicly burned by an order of the house of lords in 
1709 ; nor does there seem to have been a single dissent in 
that body to a step that cast such a stigma on the university. 
But the disgrace of the offence was greater than that of the 
punishment. 

1 p. .19. « p. 46. * CoUier, 902. Somers Tracts, viu. 45iO. 



Cha. II. — 1673-85. RUPTURE WITH LOUIS. 219 

We can frame no adequate conception of the jeopardy in 
which our liberties stood under the Stuarts, especially in this 
particular period, without attending to this spirit of servility 
which had been so sedulously excited. It seemed as if Eng- 
land was about to play the scene which Denmark had not 
long since exhibited, by a spontaneous surrender of its con- 
stitution. And although this loyalty were much more on the 
tongue than in the heart, as the next reign very amply dis- 
closed, it served at least to deceive the court into a belief that 
its future steps would be almost without difficulty. It is un- 
certain whether Charles would have summoned another par- 
liament. He either had the intention, or professed it in order 
to obtain money from France, of convoking one at Cambridge 
in the autumn of 1681.^ But after the scheme of new-model- 
ling corporations began to be tried, it was his policy to wait 
the effects of this regeneration. It was better still, in his 
judgment, to dispense with the commons altogether. The 
period fixed by law had elapsed nearly twelve months before 
his death ; and we have no evidence that a new parliament 
was in contemplation. But Louis, on the other hand, having 
discontinued his annual subsidy to the king in 1684, after 
gaining Strasburg and Luxemburg by his con- counectioa 
nivance, or rather cooperation,'^ it would not have with LouU 
been easy to avoid a recurrence to the only law- 
ful source of revenue. The king of France, it should be 
observed, behaved towards Charles as men usually treat the 
low tools by whose corruption they have obtained any end. 
Daring the whole course of their long negotiations, Louis, 
though never the dupe of our wretched monarch, w'as com- 
pelled to endure his shuffling evasions, and pay dearly for his 
base compliances. But when he saw himself no longer in 
need of them, it seems to have been in revenge that he per- 
mitted the publication of the secret treaty of 1G70, and with- 

' Dalrymple, Appendix, 8. Life of this he offered his nrbitration. and OB 

James, 691. He prctenji'd to come into Spain's refusal laid the fault on her, 

a proposal of the Dutch lor an alliance thoujjh already bribi'd to decide iu favor 

with Spain and the empire a;^ainst the of France. Lord Uochester was a party 

fresh encroachments of Krance, and to in all these base transactions. The ac- 

call a parliament for tuat purpose, but quisition of Lu-'teniuurg and Strasburg 

with no sincere intention, as he assured was of the utmost importance to Louis, 

Barillon. •' Je n'ai aucune intention as tliey gave him a predominating ioflu- 

d"as,sembler le parlement: ces sont ilea ence over the four Ilheuish electors, 

diables qui vtulent ma mine." Dalrym- through whom he hoped to procure tha 

pie, 15. election of the dauphin as king of tti* 

2 lie took 100,000 livres for allowing Romans. Id. 86. 
the French to seize Luxemburg ; after 



220 



DEATH OF CHARLES H. 



Chap. XII 



drew his pecuniary aid. Charles deeply resented both these 
marks of desertion in his ally. In addition to them, he dis- 
covered the intrigues of the French ambassadors with his 
malecontent commons. He perceived, also, that by bringing 
home the duke of York from Scotland, and restoring him, in 
defiance of the test-act, to the privy council, he had made the 
presumptive heir of the throne, possessed as he was of su- 
perior steadiness and attention, too near a rival to himself. 
These reflections appear to have depressed his mind in the 
latter months of his life, and to have produced that remark- 
able private reconciliation with the duke of Monmouth, 
through the influence of lord Halifax, which, had he lived, 
King's would very probably have displayed one more 

death. revolution in the uncertain policy of this reign.* 

But a death, so sudden and inopportune as to excite suspic- 
ions of poison in some most nearly connected with him, gave 
a more decisive character to the system of government.^ 



1 Dalrymple, Appendix, 74. Burnet. 
Mazure, Ilist. Ue la Revolution de 1688, 
1. 340, 372. This is confiroied by, or 
rather confirms, the very curiuus notes 
found in the duke of Monmouth's pocket- 
book when he was taken after the battle 
of Sedgeraoor, and published in the ap- 
pendix to Welwood's Memoirs. Though 
we .should rather see more externa! evi- 
dence of their authenticity than, so far 
as I know, has been produced, they have 
great marks of it in themselves; and it 
it is not impossible that, after the revolu- 
tion, \Velwood may have obtained them 
from the Secretary of State's OflSce. 

- It is mentioned by Mr. Fox, as a tra- 
dition in the duke of Hichmond's family, 
that the duchess of Portsmouth believed 
Charles II. to have been poisoned. This 
I find ronflrmed iu a letter read on the 
trial of I'raucis f raucia, indicted for trea- 



son in 1715. " The duchess of Ports- 
mouth, who is at present here, gives a 
great deal of offence, as I am informed, by 
pretending to prove that the late king 
James had poisoned his brother Charles ; 
it was not expected that after so many 
years' retirement in France she should 
come hither to revive that vulgar report 
which at so critical a time cannot be for 
any good purpose." State Trials, xv. 
948. It is almost needless to say that 
the suspicion was wholly unwarrantable. 
I have since been informed, on the best 
authority, that Mr. Fox did not derive 
his authority from a tradition in the duke 
of liichmond's family, that of his own 
mother, as his editor had very naturally 
conjectured, but from his father, the first 
lord Holland, who, while a young man 
travelling in France, had become ac- 
quainted with the duciiess of Portsmouth. 



JHAP. II. PRIVILEGES OF SUBJECTS. 221 



CHAPTER XIIL 

ON THE STATE OF THE CONSTITUTION UNDER CHARLES U 

Effect of the Presa — Restrictions upon it before and after the Restoration — Licens- 
ing Acts — I'olitical Writings checked by tlie Judges — Instauces of Illegal Proc- 
lamations not numerous — Juries fined for Verdicts — Question of tlieir Right to 
return a General Verdict — llabeiis Corpus Act passed — Differences between Lord* 
and Commons — Judicial Powers of the Lords historically traced — Their Preteu- 
Bions about the Time of the Restoration — Resistance made by the Commons — 
Dispute about their original Jurisdiction — And that in Appeals from Courts of 
Equity — Question of the exclusive Right of the Commons as to Money Bills — 
Its History — The Right extended farther — State of the Upper House under the 
Tudors and Stuarts — Augmentation of the Temporal Ix)rds — State of the Com- 
mons — Increase of their Members — Question aa to Rights of Klection — Four 
different Theories as to the Original Principle — Their Probability considered. 

It may seem rather an extraordinary position, after the 
last chapters, yet is strictly true, that the fundamental privi- 
leges of the subject were less invaded, the prerogative swerved 
into fewer excesses, during the reign of Charles II. than in 
any former period of equal length. Thanks to the patriotic 
energies of Selden and Eliot, of Pym and Hampden, the 
constitutional boundaries of royal power had been so well 
established that no minister was daring enough to attempt 
any flagrant and general violation of them. The frequent 
session of parliament, and its high estimation of its own privi- 
leges, furnished a security against illegal taxation. Nothing 
of this sort has been imputed to the government of Charles, 
the first king of England, perhaps, whose reign was wholly 
free from such a chai-ge. And as the nation happily escaped 
the attempts that were made after the Restoration to revive 
the star-chamber and high commission courts, there were no 
means of chastising political delinquencies except through 
the regular tribunals of justice and through the verdict of 
a jury. Ill as the one were often constituted, and submissive 
as the other might often be found, they afforded something 
more of a guaranty, were it only by the publicity of their 
proceedings, than the dark and silent divan of courtiers and 



222 EFFECT OF THE PRESS. Chap. X.III 

prelates who sat in judgment under the two former kings of 
the house of Stuart. Though the bench was frequently sub- 
servient, the bar contained high-spirited advocates whose 
firm defence of their clients the judges often reproved, but 
no longer affected to punish. The press, above all, was 
in continual service. An eagerness to peruse cheap and 
ephemeral tracts on all subjects of passing interest had pre- 
vailed ever since the Reformation. These had been extraor- 
dinarily multiplied from the meeting of the long parliament. 
Some thousand pamphlets of diffei-ent descriptions, written 
between that time and the Restoration, may be found in the 
British Museum; and no collection can be supposed to be 
perfect. It would have required the summary process and 
stern severity of the court of star-chamber to repress this 
torrent, or reduce it to those bounds whicli a government is 
apt to consider as secure. But the measures taken with this 
view under Charles II. require to be distinctly noticed. 
In the reign of Henry VIII., when the political importance 
of the art of printing, especially in the great 
the press. question of the Reformation, began to be appre- 
Restrictions hended, it was •thoun;ht necessarv to assume an 

upon It , , , ^. 1 I •' 1 I . J 

before and absolutc coutrol over it, partly by the kmg s gen- 
Restoration. ®^^^ prerogative, and still more by virtue of his 
ecclesiastical supremacy.^ Thus it became usual 
to grant by letters-patent the exclusive right of printing the 
Bible or religious books, and afterwards all others. The 
privilege of keeping presses was limited to the members of 
the stationers' company, who were bound by regulation? 
established in the reign of Mary by the star-chamber, tor the 
contravention of which they incurred the speedy chastisement 
of that vigilant tribunal. Tiiese regulations not only limited 
the number of presses, and of men who should be employed 

1 It was said in 18 Car. 2 (1666) that man's liberty to print that would." 1 

"the king by the common law hath a Mod. Hep. 258. Kennet informs us that, 

gouei-al prerogative over the printing- several complaints having been made of 

press; so that none ought to print a book Lilly s Grammar, the use of wliith had 

for public use without his license." This been prescribed by the royal ecclesiastical 

seems, however, to have been in the ar- supremacy, it was thought proper iii 1664 

gument of counsel ; but the court held that a new public form ot grammar 

that a patent to print law-books exclu- should be drawn up and approceU in con- 

eively was no monopoly. Carter's Re- vocation, to be enjoined by the royal au- 

ports, 89. " Matters of state and things thority. One was accordingly brought 

that concern the government," it is said in by bishop Pearson, but t!)e matt«i 

In another case, " were never left to any dropped. Life of Charles II. 274 



CBA.n. — Const uation. LICENSING ACTS. 223 

on them, but subjected new publications to the previous 
inspection of a licenser. The long parliament did not hesi- 
tate to copy this precedent of a tyranny tliey had overthrown, 
and, by repeated ordinances against unlicensed printing, 
hindered, as far as in tliem lay, this great instrument of 
political power from serving the purposes of their adversa- 
ries. Every government, however popular in name or origin, 
must have some uneasiness from the great mass of the niul- 
litude, some vicissitudes of public opinion to apprehend; and 
experience shows that republics, especially in a revolutionary 
season, shrink as instinctively, and sometimes as reasonably, 
from an open license of the tongue and pen, as the most 
jealous court. We read the noble apology of Milton for the 
freedom of the press with admiration ; but it had little influ- 
ence on the parliament to whom it was addressed. 

It might easily be anticipated, from the general spirit of 
lord Clarendon's administration, that he would not Licensing 
suffer the press to emancipate itself from these '"'^• 
established shackles.* A bill for the regulation of printing 
failed in 1G61, from the commons' jealousy of the peers, who 
had inserted a clause exempting their own houses from 
search.* But next year a statute was enacted, which, recit- 
ing " the well-government and regulating of printers and 
printing-presses to be matter of public care and concernment, 
and that by the general licentiousness of the late times many 
evil-disposed persons had been encouraged to print and sell 
heretical and seditious books," prohibits every private person 
from printing any book or pamphlet, unless entered with the 
stationers' company, and duly licensed in the following man- 
ner: to wit, books of law by the chancellor or one of the 
cldef'-ju.-tices, of history and politics by the secretary of state, 
of heraldry by the kings at arms, of divinity, physic, or phi- 
losophy, by the bishops of Canterbury or London, or, if 
|)rinted at either univeisity, by its chancellor. The number 
:)t master-printers was limited to twenty; they were to give 
^ecurity, to affix their names, and to declare the author, if 
required by the licenser. The king's messengers, by warrant 

1 We find an order of council, June 7, " which are very pernicious to monarcliy, 

1G60, that the stationers' company do and injurious to his ni.ijesty's blessed 

seize and deliver to the secretary of state progenitors." Rennet's Rcj^ster, 17R. 

all copies of Buchanan's History of Scot- Tliis was heginnini; early, 

land, and De Jure Kegni apud Scotos, 2 Oonimons' Journals. .Inly 29. 16(31 



224 POLITICAL WRITINGS CHECKED CnAy. Xm 

from a secretary of state, or the master and wardens of the 
stationers' company, were empowered to seize unlicensed 
copies wlierever they should think fit to search for them, 
and, in case they should find any unlicensed books suspected 
to contain matters contrary to the church or state, they were 
to bring them to the two bishops before mentioned, or one 
of the secretaries. No books were allowed to be printed out 
of London, except in York and in the universities. The 
penalties for printing without license were of course heavy.' 
This act was only to last three j'ears ; and, after being twice 
renewed, (the last time until the conclusion of the first session 
of the next parliament,) expired consequently in 1G79; an 
era when the house of commons were happily in so different 
a temper that any attempt to revive it must have proved abor- 
tive. During its continuance the business of licensing books 
was intrusted to sir Roger L'Estrange, a well-known pam- 
phleteer of that age, and himself a most scurrilous libeller in 
behalf of the party he espoused, that of popery and despotic 
power. It is hardly necessary to remind the reader of the ob- 
jections that were raised to one or two lines in Paradise Lost. 
Though a previous license ceased to be necessary, it 
Political was held by all the judges, having met for this 
Tbecke^by purpose (if we bclieve chief-justice Scroggs), by 
the judges, {he king's command, that all books scandalous to 
the government or to private persons may be seized, and 
the authors or those exposing such books punished ; anil that 
all writers of false news, though not scandalous or seditious, 
are indictable on that account."^ But in a subsequent trial 
he informs the jury that, " when by the king's command we 
were to give in our opinion what was to be done in point 
of regulation of the press, we did all subscribe that to print 
or publish any news, books, or pamphlets of news whatso- 
ever, is illegal ; that it is a manifest intent to the breach of 
the peace, and they may be proceeded against by law as ;ni 
illegal thing.* Suppose now that this thing is not scandalous, 
what then ? If there had been no reflection in this book at 
all, yet it is illicite ; and the author ought to be convicted for 

1 14 Car. 2, c. 33. day the judges made their report to hii 

2 State Trials, vii. 929. majesty in council, in pursuance of an 
8 This declaration of the judges is re- order of this board, by which they uoan- 

corded in the following pa-ssage of the imously declare that his maje.sty ui.ay by 
Loudon Gazette, May 5, 1630: — '*This law prohibit the printing and publi;jhiug 



Cha. II. — Constitution. BY THE JUDGES. 225 

it. And that is for a public notice to all people, and espe- 
cially rrinters and booksellers, that they ought to print no 
book or pamphlet of news whatsoever without authority." 
The pretended libel in this case was a periodical pamplilet, 
entitled the Weekly Pacquet of Advice from Rome ; being 
rather a virulent attack on popery than serving the purpose 
of a newspaper. These extraordinai-y propositions were so 
far from being loosely advanced, that the court of king's 
bench proceeded to make an order that the book should no 
longer be printed or published by any person whatsoever.^ 
Such an order was evidently beyond the competence of that 
court, were even the prerogative of the king in council as 
high as its warmest advocates could strain it. It formed 
accordingly one article of the impeachment voted against 
Scroggs in the next session.^ Another was for is.suing gen- 
eral warrants (that is, warrants wherein no names are 
mentioned) to seize seditious libels and apprehend their 
authors.* But this impeachment having fallen to the ground, 
no check was put to general warrants, at least issued by the 
secretary of state, till the famous judgment of the court of 
common pleas in 17 03. 

Those encroachments on the legislative supremacy of 
parliament, and on the personal rights of the subject, by 
means of proclamations issued from the privy 
council, which had rendered former princes of i"sta"ce3of 

1 1 1 r,i , , o /. .,. , illegal proc- 

both the ludor and htuart lamuies almost arbi- lamatioos 
trary masters of their people, had fallen with the 
odious tribunal by which they were enforced. 
The k^ng was restored to nothing but what the law had 
preserved to him. Few inst^xnces appear of illegal procla- 
mations in his reign. One of these, in 1665, required all 
otfieers and soldiers who had served in the armies of the late 
usui-ped powers to depart the cities of London and West 

of all D'vtB books and pamphlets of news i State Trials, vii. 1127 ; riii. 184, 197. 

whiU.soerer uot liceised by his majesty's Even North seems to admit that this was 

authority, as manifestly tending to the a stretch of power. Examen, 5U4. 

breach ot the peace and disturbance of 2 State Trials, viii. lUS. 

the kingdom. Whereupon his majesty 3 Jt seems that the.se warrants, though 

was pleased to direct a proclamation to be usual, were known to be against the law. 

prepared for the restraining the printing State Trials, vii. 949, 95tj. l'o.ssibly they 

of news- books and pamphlets of news might have been justified under the worij 

without leave." Accordingly such a Of the licen.siag act, while that was in 

proclamation appears in the liazette of force, and, having been thua introduced. 

May 17. were not laid aside. 



not nu- 
merous. 



^ 



22G ILLEGAL PROCLAMATIONS. Chap. XHI 

minster, and not lo return within twenty miles of them be* 
fore the November following. This seems connected with 
the well-giounded apjirehension of a republican conspiracy.' 
Another, immediately after the Fire of London, directed the 
mode in which houses should be rebuilt, and enjoined the 
lord mavor and other city magistrates to j^uU down what- 
soever obstinate and I'efractory persons might presume to 
erect u[;on pretence that the ground was their own ; and 
es|)ecially that no houses of timber should be erected for the 
future.'^ Though the public benefit of this last restriction, 
and of some regulations as to the rebuilding of a city which 
had been destroyed in great measure through the want of 
them, was sutficiently manifest, it is impossible to justify the 
tone and tenor of this proclamation ; and more particularly 
as the meeting of {)arliament was very near at hand. But 
an act having passed therein for the same purpose, the proc- 
lamation must be considered as having had little effect. 
Another instance, and far less capable of extenuation, is a 
proclamation for shutting up coflee-houses, in December, 
1G75. I have already mentioned this as an intended meas- 
ure of lord Clarendon. Coffee-houses were all at that time 
subject to a license, granted by the magistrates at quar- 
ter sessions. But, the licenses having been granted for a 
certain time, it was justly questioned whether they could in 
any manner be revoked. This proclamation being of such 
disputable legality, the judges, according to North, were 
consulted, and intimating to the council that they were not 
agreed in opinion upon the most material questions submitted 
to them, it seemed advisable to recall it.* In this essential 
matter of proclamations, theretbre, the administration of 
Charles II. is very advantageously compared with that of his 
father ; and, considering at the same time the entire cessa- 
tion of impositions of money without consent of parliament, 
we must admit that, however dark might be his designs, 
there were no such general infringements of public liberty ia 
his reign as had continually occurred before the long par- 
liament. 

One undeniable fundamental privilege had survived the 
shocks of every revolution ; and in the worst times, except 

1 Rennet's Charles II. 277- Kennet, 337- Hume of course pretend* 

3 Suite Trials, vi. 837. that this proclamation would have beim 

» Ralph, 297 J North's Exameu, 139 ; reckoned legal in former times. 



I 



Cha. II. — Constitution. JURIES FINED FOR VERDICTS. 227 

those of the late usurpation, had been the standing; record of 
primeval liberty — the trial by jury: whatever intViiigenient 
had been made on this, in many cases of misdemeanor, by 
the present jurisdiction of tlie star-cliamber, it was impossible, 
after the bold reformers of 1G41 bad lc)j)ped off that unsightly 
\ excrescence from the constitution, to prevent a criminal 
' chai-ge from passing the h'gal course of investigation through 
the inquest of a grand jury and the verdict in open couit of 
a petty jury. But the judges, and other ministers of justice, 
for the sake of their own authority or that of the crown, 
devised various means of subjecting juries to their own direc- 
tion, by intimidation, by unfair retiu-ns of the panel, or by 
narrowing the boundaries of their lawful function. It is said 
to have been the practice in early times, as I have mentioned 
from sir Thomas Smith in another place, to fine juHcs fined 
juries for returning verdicts against the dii'ection ^°'^ vei-aicta. 
of the court, even as to matter of evidence, or to summon 
them before the star-chamber. It seems that instances of 
this kind were not very numerous after the accession of 
Elizabeth ; yet a small number occur in our books of reports. 
Tiiey were probably sulhcient to keep juries in much awe. 
But after the restoration, two judges, Hyde and Keeling, 
successively chief-justices of the king's bench, took on them 
to exercije a pretended power, which had at least been inter- 
mitted in the time of the commonwealth. The grand jury 
of Somerset, having found a bill for manslaughter instead 
of murder, against the advice of the latter judg..^, were sum- 
moned before the court of king's bench, and dismissed with a 
reprimand instead of a fine.^ In other cases fines were set 
on p(;tty juries for acquittals against the judge's direction. 

1 "Sir ITugh Wyndham and others of the judge; that the intention of theii 
of thu griinJ jury of Somerset were at findiu;; indictments is, tliiit there uii.nht 
the l:ist assizes bound over, by lord Ch. be no nuilicious prosecution; aiiJ thfre- 
J Ket'linj;, to appear at the K. B. the fore, if tlie matter of the indictnii'ur be 
first d;iy of this term, to answer a niisde- not fnuned of malice, but is verLsniiilis, 
ineaiior for finding upon a bill of inur- though it be not vera, yet it answers 
der, 'billa vera quoad mansl:iugliter,' their oiiths to pixssent it. T»T.<deu said 
agiiinst tin; directions of the judge. Upon he had known petty juries punished in 
their appearance they were told by the my lord chief justice Hyde's time for 
court, being full, that it was a misde- disobeying of the judge's directions in 
meuiior in tliem, for they are not to point of law. But, because it was a mis- 
distinguish betwixt murder and man- t;ike iu their judgments rather than an 
slauglner ; for it is only the cirruui- obstinacy, the court discharged them 
stance of malice which makes the differ- without any fine or other attendance." 
ence, and that may be implied by the Pjusch. 19 Car. 2. Keeling, Oh. .). Twis- 
law without any fact at all, and so it den, Wyndliam, Morton, justices; Uar- 
lies not in the judgment of a jury, but grave MSS., Tol. 33!l. 



228 RIGHT OF JURffiS TO RETURN Chap. X t 

This unusual and dangerous inroad on so important a rij^ ».t 
attracted the notice of the house of commons ; and a com- 
mittee was appointed, who reported some strong resolutions 
against Keeling for illegal and arbitrary proceedings in liis 
office, the last of which was, that he be brought to trial, in 
order to condign punishment, in such manner as the house 
should deem expedient. But the chief-justice, having re- 
quested to be heard at the bar, so far extenuated his 
offence that the house, after resolving that the practice of 
fining or imprisoning jurors is illegal, came to a second reso- 
lution to proceed no farther against him.^ 

The precedents, however, which these judges endeavored 
Question of ^'^ establish, were repelled in a more decisive 
their right manner than by a resolution of the house of com- 
generai"ver- mons. For VA two cases, where the fines thus 
^<''- imposed upon jurors had been estreated into the 

exchequer, Hale, then chief baron, with the advice of 
most of the judges of England, as he informs us, stayed pro- 
cess ; and in a subsequent case it was resolved by all the 
judges, except one, that it was against law to line a jury for 
giving a verdict contrary to the court's direction. Yet not- 
withstanding this very recent determination, the recorder of 
London, in 1670, upon the acquittal of the quakers, Penn 
and Mead, on an indictment for an unlawful assembly, im- 
posed a fine of forty marks on each of the jury.'^ bushell, 
one of their number, being committed for non-payment of 
this fine, sued his writ of habeas corpus from the court of 
common pleas ; and, on the return made, that he had been 
committed for finding a verdict against full and manifest 
evidence, and against the direction of the court, chief-justice 
Vaughan held the ground to be insufficient, and discharged 
the party. In his reported judgment on this occasion he 
maintains the practice of fining jurors, merely on this ac- 
count, to be comparatively recent, and clearly against law ' 
No later instance of it is recorded ; and perhaps it can only 
be ascribed to the violence that still prevailed in the house 
of commons against non-conformists that the recorder escaped 
its animadversion. 

In this judgment of the chief-justice Vaughan he was led 
to enter on a question much controverted in later times — 

1 Journals, 16th Oct. 1667- « Vaughan's Reports. State Trials. ▼■ 

» State Trials, vi. 967. 999. 



Cn.v.n. — Constitution. A GENERAL VERDICT. 229 

the legal right of the jury, without the direction of the judge, 
to find a general verdict in criminal cases, where it deter- 
mines not only the truth of the facts as deposed, but tlieir 
quaUty of guilt or innocence; or, as it is commonly, though 
not perhaps quite accurately worded, to judge of the law as 
well as tlie fact. It is a received maxim with us, that the 
judge cannot decide on questions of fact, nor the jury on 
those of law. Whenever the general principle, or what may 
be termed the major proposition of the syllogism, which 
every litigated case contains, can be extracted from the par- 
ticular circumstances to which it is supposed to apply, the 
court pronounce their own determination, without reference 
to a jury. The province of the latter, however, though it 
properly extend not to any general decision of the law, is 
certainly n^t bounded, at least in modern times, to a mere 
estimate of the truth of testimony. The intention of the 
litigant parties in civil matters, of the accused in crimes, is in 
every case a matter of inference from the testimony or from 
the acknowledged facts of the case ; and wherever that inten- 
tion is material to the issue, is constantly left for the jury's 
deliberation. There are indeed rules in criminal proceedings 
which supersede this consideration ; and where, as it is ex- 
pressed, the law presumes the intention in determining the 
offence. Thus, in the common instance of murder or man- 
slaughter, the jury cannot legally determine that provocation 
to be sufficient which by the settled rules of law is otherwise ; 
nor can they, in any case, set up novel and arbitrary construc- 
tions of their own without a disregard of their duty. Unfor- 
tunately it has been sometimes the disposition of judges to 
claim to themselves the absolute interpretation of facts, and 
the exclusive right of drawing inferences from them, as it 
has occasionally, though not perhaps with so much danger, 
been the failing of juries to make their right of returning a 
general verdict subservient to faction or prejudice. Vaughan 
did not of course mean to encourage any petulance in juries 
that should lead them to pronounce on the law, nor does he 
expatiate so largely on their power as has sometimes since 
been usual ; but confines himself to a narrow, though conclu« 
sive, line of argument, that, as every issue of fact must bt 
supported by testimony, upon the truth of which the jury are 
exclusively to decide, they cannot be guilty of any legal 
misdemeanor in returning their verdict, though apparently 



230 HABEAS CORPUS ACT. Chap. Xia 

against the diroction of the court in point of law; since it 
cannot ever bu proved that they beheved the evidence upon 
which that direction must have rested.^ 

I have ah-eady pointed out to the reader's notice that 
Habeas article of Clarendon's impeachment which charges 

corpus act him with having caused many persons to be im- 
passed. prisoucd against law.^ These were released by 

the duke of Buckingham's administration, which in several 
respects acted on a more liberal principle than any other in 
this reign. The practice was not, however, wholly discon- 
tinued. Jenkes, a citizen of London on the popular or fac- 
tious side, having been committed by the king in council for 
a mutinous speech in Guildhall, the justices at quarter ses- 
sions refused to admit him to bail, on pretence that he had 
been committed by a superior court ; or to try him, because 
he Avas not entered in the calendar of prisoners. The chan- 
cellor, on application for a habeas corpus, declined to issue it 
during the vacation ; and the chief-justice of the king's 
bench, to whom, in the next place, the ti-iends of Jenkes had 
recourse, made so many difficulties that he lay in prison for 
several weeks.^ This has been commonly said to have pro- 
duced the famous act of habeas corpus. But this is not truly- 
stated. The arbitrary proceedings of lord Clarendon were 
what really gave rise to it. A bill to prevent the refusal 
of the writ of habeas corpus was brought into the house on 
April 10, 1668, but did not pass the committee in that ses- 
sion.'* But another to the same purpose, probably more 
remedial, was sent up to the lords in March, 1669-70.*^ It 
failed of success in the upper house ; but the commons con- 
tinued to repeat their struggle for this important measure, 
and in the session of 1673-4 passed two bills, — one to pre- 
vent the imprisonment of the subject in jails beyond the 
seas, another to give a more expeditious use of the writ of 
habeas corpus in criminal matters.^ The same or similar 

1 See Ilargrave's judicious pbserrationa * Commons' Journals. As the titles 
on the province of juries. State Trials, only of these bills are entered in the 
vi. 1013. Journals, their purport cannot be stated 

2 Those who were confined by war- with absolute certainty. They might, 
rants were forced to buy their liberty however, I suppose, be found in some of 
of the courtiers ; — " which," says Pepys, the offices. 

(July 7, 16ti7,) "is a most lamentable * I'arl. Hist. 661. It waa opposed by 

thing that we do professedly own that the court. 

we do these things, not for right and o In this session, Feb. 14, a committee 

justice' sake, but only to gratify this or was appointed to iuspect the laws, and 

'■hat person about the king." consider how the king may commit any 

» State Trials, vi 1189. subject by his immediate warrant, as the 



Cka. If. — Constitution. 



HABEAS CORPUS ACT. 



231 



bills appear to have gone up to the lords in 1675. It waa 
not till 1G7G that the delay of Jenkes's habeas corpus took 
place. And this atfair seems to have had so trifling an 
influence that these bills were not revived for the next two 
years, notwithstanding the tempests that agitated the house 
during that period.^ But in the short parliament of 1679 
they appear to have been consolidated into one, that, having 
met Avith better success among the lords, passed into a statute, 
and is generally denominated the habeas corpus act.^ 

It is a very common mistake, and that not only among 
foreigners, but many from whom some knowledge of our 
constitutional laws might be expected, lo suppose that this 
statute of Charles II. enlarged in a great degi'ee our liberties, 
and forms a sort of epoch in their history. But though a 
vei-y beneficial enactment, and eminently remedial in many 
cases of illegal imprisonment, it introduced no new principle, i 
nor conferred any right upon the subject. From the earliest I 
records of the English law, no freeman could be detained in i 
prison, except upon a criminal charge or conviction, or for a 
civil debt. In the former case it was always in his power 
to demand of the court of king's bench a writ of habeas 
corpus ad subjiciendum, directed to the person detaining hitn 
in custody, by which he was enjoined to bring up the body 
of the prisoner, with the warrant of commitment, that the 
court might judge of its sufficiency, and remand the party, 
admit him to bail, or discharge him, according to the nature 
of the charge. This writ issued of right, and could not be 
refused by the court. It was not to bestow an immunity 
from arbitrary imprisonment, which is abundantly provided 
iH Magna Ciiarta (if indeed it were not much more ancient). 



law now stands, and report the same to 
the houso, and also liow the law now 
ttands toucliini; couimitmentis of persons 
by the council-table. lialph supposes 
(p. 205) that this t^ve rise to the habeas 
corpus act, which is curtiiinly not the 
case. The statute 16 Car. 1, c. 10, .seems 
to recognize the legality of commitments 
by the king's special warrant, or by the 
privy council, or some, at least, of its 
members singly ; and probably this, with 
long usage, is sufficient to support the 
controverted authority of the secretary 
of state. As to the privy council', it is 
not doubted, I believe, that they may 
commit. But it has been held, even in 
the worst of times, that a warrant of 
cKimmitmeut under the king's own band, 
VOL. II. — c. 16 



without seal or the hand of any secretary 
or oSicer of state or justice, is bad. 2 
Jac. 2, B. U. ; 2 Shower, 484. 

1 In the Parliamentary History, 845, 
we find a debate on the petition of one 
Harrington to the commons in IGTT, who 
had been committed to close cu.stody by 
the council. But as his demeanor waa 
alleged to have been disrespectful, and 
the right of the council to commit was 
not disputed, and especially as he .«eems 
to have been at liberty when the debate 
took pl.ice, no proceedings ensued, though 
the commitment had not been aitog<!tbei 
regular. Ralph (p. 314) comments more 
severely on the behavior of the house 
than was necessary. 

2 31 Car. 2. c. 2. 



532 HABEAS CORPUS ACT. iJii vp. XIH 

that the statute of Charles IT. was enacted, but to cut off the 
abuses by which the government's lust of power, and tho 
servile subtlety of crown laAvyers, had impaired so funda- 
mental a privilege. 

There had been some doubts whether the court of common 
pleas could issue this writ ; and the court of exchequer seems 
never to have done so.^ It was also a question, and one of 
more importance, as we have seen in the case of Jenkes, 
whether a single judge of the court of king's bench could 
issue it during the vacation. Tlie statute therefore enacts 
that where any person, other than persons convicted or in 
execution upon legal process, stands committed for any crime, 
except for treason or felony plainly expressed in the warrant 
of commitment, he may during the vacation complain to the 
chancellor, or any of the twelve judges, who, upon sight of 
a copy of the warrant, or an affidavit that a copy is denied, 
shall award a habeas corpus directed to the officer in whose 
custody the party shall be, commanding him to bring up the 
body of his prisoner Avithin a time limited according to the 
distance, but in no case exceeding twenty days, who shall 
discharge the party from imprisonment, taking surety for his 
appearance in the court wherein his offence is cognizable. 
A jailer refusing a copy of the warrant of commitment, or 
not obeying the writ, is subjected to a penalty of 100^.; and 
even the judge denying a habeas corpus, when required 
according to this act, is made liable to a penalty of 500/. at 
the suit of the injured pai'ty. The court of king's bench 
had already been accustomed to send out their writ of habeas 
corpus into all places of peculiar and privileged jurisdiction, 
where this ordinary process does not run, and even to the 
island of Jersey, beyond the strict limits of the kingdom of 
England ; ^ and this power, Avhich might admit of some ques- 
tion, is sanctioned by a declaratory clause of the present 
statute. Another section enacts, that "no subject of this 
realm that now is, or hereafter shall be, an inhabitant or 
resiant of this kingdom of England, dominion of Wales, or 
town of Berwick-upon-Tweed, shall be sent prisoner into 

1 The puisne judges of the common to bring up the body of Overton, a well- 
pleas granted a laabe;is corpus agaiust the known officer of tlie commonwealth, who 
opinion of chief-justice Vaughan, who had been confined there several years, 
denied tho court to have that power. Siderfin's Reports, 38G. This was in 
Carter's Keports, 221. 1668, after the fall of Clarendon, when a 

2 The court of king's bench directed a less despotic system was introduced, 
habeas corpus to the governor of Jersey 



VuA II. — Constitution. HABEAS CORPUS ACT. 233 

Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, 
garrisons, islands, or places beyond the seas, which are, or at 
any time hereafter sliall be, within or without the dominions 
of his majesty, his heirs or successors," under penalties of the 
heaviest nature short of death which the law then knew, and 
an incapacity of receiving the king's pardon. The great 
rank of those who were likely to offend against this part 
of the statute was, doubtless, the cause of this unusual se 
verity. 

But as it miglit still be practicable to evade these remedial 
provisions by expressing some matter of treason or felony in 
the warrant of commitment, the judges not being empowered 
to inquire into the truth of the facts contained in it, a further 
security against any protracted detention of an innocent man 
is afforded by a provision of great importance — that every 
person committed for treason or felony, plainly and specially 
expressed in the warrant, may, unless he shall be indicted in 
the next term, or at the next sessions of general jail-delivery 
after his commitment, be, on prayer to the court, released 
upon bail, unless it shall appear that the crown's witnesses 
could not be produced at that time ; and if he shall not be 
indicted and tried in the second term or sessions of jail- 
delivery, he shall be discharged. 

The remedies of the habeas corpus act are so effectual 
that no man can possibly endure any long imprisonment on 
a criminal charge, nor would any minister venture to exer- 
cise a sort of oppression so dangerous to himself. But it 
should be observed that, as the statute- is only applicable to 
cases of commitnient on such a charge, every other species 
of restraint on personal liberty is left to the ordinary remedy 
as it subsisted before this enactment. Thus a party detained 
without any warrant must sue out his habeas corpus at com- 
mon law ; and this is at present the more usual occurrence. 
But the judges of the king's bench, since the statute, have 
been accustomed to issue this writ during the vacation in all 
cases whatsoever. A sensible difficulty has, however, been 
sometimes felt, from their incompetency to judge of the truth 
of a return made to the writ. For, though in cases within 
the statute the prisoner may always look to his legal dis- 
charge at the next sessions of jail-delivery, the same redress 
might not always be obtained when he is not in cu-tody of a 
common jailer. If the person therefore who detains any 



234 DIFFERENCES BETWEEN Chap. XIII 

one in custody should think fit to make a return to the writ 
of habeas corpus, alleging matter sufficient to justify the 
party's restraint, yet false in fact, there would be no means, 
at least by this summary process, of obtaining relief. An 
attempt was made in 1757, after an examination of the 
judges by the house of lords as to the extent and efHciency 
of the habeas corpus at common law, to render their juris- 
diction more I'emedial.^ It failed, however, for the time, of 
success; but a statute has recently been enacted" which not 
only extends the power of issuing the writ during the vaca- 
tion, in cases not within the act of Charles II., to all the 
judges, but enables the judge before whom the writ is 
returned to inquire into the truth of the facts alleged therein, 
and, in case they shall seem to him doubtful, to release the 
party in custody, on giving surety to appear in the court to 
which such judge shall belong, on some day in the ensuing 
term, when the court may examine by affidavit into the truth 
of the facts alleged in the return, and either remand or dis- 
charge the party, according to their discretion. It also declared 
that a wi-it of habeas corpus shall run to any harbor or road 
on the coast of England, though out of the body of any 
county ; in order, I presume, to obviate doubts as to the 
effects of this remedy in a kind of illegal detention, more 
likely perhaps than any other to occur in modern times, on 
board of vessels upon the coast. Except a few of this de- 
scription, it is very rare for a habeas corpus to be required 
in any case where the government can be presumed to have 
an interest. 

The reign of Charles II. was hardly more remarkable by 

the vigilance of the house of commons against 

between arbitrary prerogative than by the warfare it waged 

lords and against whatever seemed an encroachment or usur- 

commons. ° . . , , , n i- t i 

pation m the otlier iiouse or parliament. It has 
been a peculiar happiness of our constitution that such dis- 
sensions have so rarely occurred. I cannot recollect any 
republican government, ancient or modei'n (except perhaps 
some of the Dutch ^jfovinces), where hereditary and demo- 
cratical authority have been amalgamated so as to preserve 
both in eftect and influence, without continual dissatisfaction 

1 See the lords' questions and answers out of a case of impressment, whcrs tha 

of the judges in Pari. Hist. xv. 81)3 ; or expeditious remedy of habeas corpus lit 

Bacon's Abi'idgment, tit. Habeas Corpus; eminently necessary, 

Iso WiLmot's J idgments, 81. This arose - 66 G. III. c. lOi). 



Cha. it. — Constitution. THE TWO HOUSES. 235 

and reciprocal encroachments ; for though, in the most tran- 
quil and prosperous season of the Roman state, ane consul, 
and some magistrates of less importance, were invariably 
elected from the patrician families, these latter did not form 
a corporation, nor had any collective authority in the gov- 
ernment. The history of monarchies, including of course all 
states where the principality is lodged in a single person, 
that have admitted the aristocratical and popular tempera- 
ments at the same time, bears frequent witness to the same 
jealous or usurping spirit. Yet monarchy is unquestionably 
more Axvorable to the coexistence of an hereditary body of 
nobles with a representation of the commons than any other 
form of commonwealth; and it is to the high prerogative of 
the English crown, its exclusive disposal of offices of trust, 
which are the ordinary subjects of contention^ its power of 
putting a stop to parliamentary disputes by a dissolution, 
and, above all, to the necessity which both the peers and the 
commons have often felt, of a mutual good understanding for 
the maintenance of their privileges, that we must in a great 
measure attribute the general harmony, or at least the 
absence of open schism, between the two houses of parlia- 
ment. This is, however, still more owing to the happy 
graduation of ranks, which renders the elder and the younger 
sons of our nobihty two links in the unsevered cliain of 
society ; the one trained in the school of popular rights, and 
accustomed, for a long portion of their lives, to regard the 
privileges of the house whereof they form a part, full as 
much as those of their ancestors ; ^ the other falling without 
hereditary distinction into the class of other commoners, and 
mingling the sentiments natural to their birth and family 
affections with those that are more congenial to the whole 
community. It is owing also to the wealth and dignity of 
those ancient families who would be styled noble in any 
other country, and who give an aristocratical character to the 

1 It was ordered, 21st Jan. 1519, that can fail to acknowledse, in binding to- 

tho eldest son of the earl of Bedford gether the two branches of the Icgisla- 

should continue in the house after his ture, and in keeping alive the sympathy 

father liad succeeded to the peerage, for public and popular rigUts in the 

And, 9th Feb. 1575, that his son should English nobility (that sensus cominunia 

do so, " according to the precedent in the which the poet thought so rare in high 

like case of the no.v earl his father." It rank), is first recorded, and that twice 

is worthy of notice ttiat this determina- over, in behalf of a family in whom the 

tiou, which, at the time, seems to have love of constitutional freedom has become 

been thought doubtful, though very un- hereditary, and who may be justly said 

reasonably (.Journals, 10th Feb.), but to have deserved, like the Valerii at 

which has had an iotliience which no one Home, the suroaxne of I'ublicoliB. 



236 JUDICIAL POWER OF TUE LORDS. Chap. XIH. 

popular part of our legislature, and to the influence which 
the peers themselves; through the representation of small 
boroughs, are enabled to exerolse over the lower house. 

The original constitution of England was highly aristo- 
judiciai cratical. The peers of this realm, when sum- 
powers of moned to parliament (and on such occasions every 
historicaUy peer was entitled to his writ), were the necessary 
traced. counscUorij and coadjutors of the king in all the 

functions that appertain to a government. In granting money 
for the public service, in changing by permanent statutes the 
course of the common law, they could only act in conjunction 
with the knights, citizens, and burgesses of the lower house 
of parliament. In redress of grievances, whether of so pri- 
vate a nature as to affect only single persons, or extending to 
a county or hundred, whether proceeding from the injustice 
of public oifieers or of powerful individuals, whether de- 
manding punishment as crimes against the state, or merely 
restitution and damages to the injured party, the lords 
assembled in parliament were competent, as we find in our 
records, to exercise the same high powers, if they were not 
even more extensive and remedial, as the king's ordinary 
council, composed of his great officers, his judges, and per- 
haps some peers, was wont to do in the intervals of parlia- 
ment. These two, the lords and the privy council, seem to 
have formed, in the session, one body or great council, where- 
in the latter had originally right of suffrage along with the 
former. In this judicial and executive authority the com- 
mons had at no time any more pretence to interfere than the 
council or the loids by themselves had to make ordinances, 
at least of a general and permanent nature, which should 
bind the subject to obedience. At the beginning of every 
parliament numerous petitions were presented to the lords, 
or to the king and lords (since he was frequently there in 
person, and always presumed to be so), complaining of civil 
injuries and abuse of power. These were generally indorsed 
by appointed receivers of petitions, and returned by them to 
the proper court whence relief was to be sought.^ For an 
immediate inquiry and remedy seem to have been rarely 
granted, except in cases of an extraordinary nature, when 

1 The fomi of appointing receivers and continued without a debate in the hous* 

trycrs of petitions, though intermitted of lords, and a division, in 1740. Paii 

during the reign of Wilham III., was Uist. xi. 1013. 
revived afterwards, and finally not dis- 



CiiA. II. — Constitution. JUDICIAL POWER OF THE LORDS. 237 

the law was defective, or could not ea^^ily be enforced by tlie 
ordinary tribunals ; the shortness of sessions, and multi- 
plicity of affairs, preventing the upper house of parliament 
from entering so fully into these matters as the king's council 
had leisure to do. 

It might perhaps be well questioned, notwithstanding the 
respectable opinion of Sir ."\I. Male, whether the statutes 
directed against the prosecution of civil and criminal suits 
before the council are so worded as to exclude the original 
jurisdiction of the house of lords, though their principle is 
very adverse to it. But it is remarkable that, so far as the 
lords themselves could allege from the rolls of parliament, 
one only instance occurs between 4 Henry IV. (1403) and 
43 Eliz. (1G02) where their house had entered upon any 
petition in the nature of an original suit; though in that 
(1 Ed. IV. 14G1) they had certainly taken on them to 
determine a question cognizable in the common courts of 
justice. For a distinction seems to have been generally 
made between cases where relief might be had in the courts 
below, as to which it is contended by Hale that the lords 
could not have jurisdiction, and tho-^e where the injui-ed 
party was without remedy, either through defect of the law, 
or such excessive power of the aggressor as could defy the 
ordinary process. During the latter part at least of this 
long interval, the council and court of star-chamber were in 
all their vigor, to which the intermission of parliamentary 
judicature may in a great measure be ascribed. It was 
owing also to the longer Intervals between parliaments from 
the time of Hen. VI., extending sometimes to five or six 
years, which rendered the redress of private wrongs by their 
means inconvenient and uncertain. lu IG21 and 1G24 the 
lords, grown bold by the general disposition in favor of par- 
liamentary rights, made orders without hesitation on private 
petitions of an original nature. They continued to exercise 
this jurisdiction in the first parliaments of Charles I. ; and in 
one instance, that of a riot at Banbury, even assumed the 
power of punishing a mi.>demeanor unconnected with privi- 
lege. In the long parliament it may be supposed that they 
did not abandon this encroachment, as it seems to have been, 
on the royal authority, extending their orders both to the pun* 
ishment of misdemeanors and to the awarding of damages. 

1 Hargrave, p. GO. The proofs are in the Lords' Journals. 



238 PRETENSIONS OF THE LORDS Chap. Xlll 

The ultimate jurisdiction of the house of lords, either by 
removing Into it causes commenced in the lower courts, or 
by writ of error complaining of a judgment given therein, 
seems to have been as ancient, and founded on the same 
principle of a paramount judicial authority delegated by the 
crown, as that which they exercised upon original petitions. 
It is to be observed that the council or star-chamber did not 
pretend to any direct jurisdiction of this nature ; no record 
was ever removed thither upon assignment of errors in an 
inferior court. But after the first part of the fifteenth cen- 
tury there was a considerable Interval dui-ing which this 
appellant jurisdiction of the lords seems to have gone into 
disuse, though probably known to be legal.^ They began 
again, about 1580, to receive writs of error from the court 
of king's bench ; though for forty years more the instances 
were by no means numerous. But the statute passed in 
1585, constituting the court of exchequer-chamber as an 
intermediate tribunal of appeal between the king's bencn 
and the parliament, recognizes the jurisdiction of the latter, 
that is, of the house of lords, in the strongest terms.^ To 
this power, therefore, of determining in the last resort, upon 
writs of error from the courts of common law, no objection 
could possibly be maintained. 

The revolutionary spirit of the long parliament brought 
Their pre- forward Still higher pretensions, and obscured all 
tensions the landmarks of constitutional privilege. As the 
timu of the commons took on themselves to direct the execu- 
Restoration. {jqji of their own orders, the lord.^, afraid to be 
jostled out of that equality to which they Avere now content 
to be reduced, asserted a similar claim at the expense of the 
king's prerogative. They returned to their OAvn house on 
the Restoration with confused notions of their high jurisdic- 
tion, rather enhanced than abated by the humiliation they 
bad undergone. Thus, before the king's arrival, the com- 
mons having sent up for their concurrence a resolution that 
the persons and estates of the regicides should be seized, the 
upper house deemed it an enci'oachment on their exclusive 

1 They wero Teiy rare after the acces- conclusive ; though we may be fully war- 

(lion of Henry V. ; but one occurs in 10th ranted in asserting that from Henry V. to 

Hen. A'l., 1432, with which Hale's list James I. there wivs very little exercise ot 

concludes, llargrave's Preface to Hale, judicial power in parliament, either civ- 

p. 7. This editor justly observes that the illy or criminally. 

Incomplete state of the votes and early 2 27th Elw c 8 
journals renders the negative proof la- 



CnA. II. — ConstituUon. RESISTANCE BY THE COJIMOXS. 239 

judicature, and changed the resolution into " an order of the 
lords on complaint of the commons." ^ In a conference on 
this subject between the two houses, the commons denied 
their lordsliips to possess an exclusive jui'isdiction, but did 
not press that matter.^ But in fact this order was rather of a 
legislative tlian judicial nature; nor could the lords pretend 
to any jurisdiction in cases of treason. They artfully, how 
over, overlooked these distinctions, and made orders almost 
daily in the session of 1 660, trenching on the executive 
power and that of the inferior courts. Not content with 
ordering the estates of all peers to be restored, free from 
seizure by sequestration, and with all arrears of rent, we find 
in their journals that they did not hesitate on petition to stay 
waste on the estates of private persons, and to secure the 
tithes of livings from which ministers had been ejected, in 
the liands of the churchwardens till their title could be 
tried.^ They acted, in short, as if they had a plenary au- 
thority in matters of freehold right wdiere any member of 
their own house was a party, and in every case as full 
and equitable jurisdiction as the court of chancery. Though, 
in the more settled state of things which ensued, these anom- 
alous orders do not so frequently occur, we find several 
assumptions of power which show a disposition to claim as 
much as the circumstances of any particular case should lead 
them to think expedient for the parties, or honorable to 
themselves.^ 

The lower house of parliament, which hardly reckoned 
itself lower in dignity, and was something more p^j,>;istanco 
than equal in substantial power, did not look nmao by thu 
•without jealousy on these pretensions. They '^°'"^"°'^- 
demurred to a privilege asserted by the lords of assessing 
themselves in bills of direct taxation ; and, having on 

1 Lords' Journals, May 18, 1660. Newport, &c. A still more extraordinriry 
* Commons' Journals, May 22. vote was passed August 16. Loni 'iLhun 
3 Lords' Journals, Juno 4, 6, 14, 20, having complained of one Keigvin. and 
22, ct alibi sstpe. " Upon infomi;ition his attorney Danby, for suing him by 
given that some person in the late times common process in Michaelmas term 
had carried away goods from the house of 1031, in breach of privili-ge of peerage, 
the earl of Northampton, leave was the house voted that he should have dam- 
given to the .sail carl, by his servants ages: nothing could be more scandalously 
and agents, to make diligent and narrow unjust, and against the spiiit of the bill 
search in the d.velling-houses of certain of indemnity. Three presbyterian peers 
persons, and to break open any door or protested. 

trunk that shall not be opened in obcdi- •• They resolved in the case of the earl 

ence to the order." June 26. The Uko of Pembroke, Jan. 30, 1678, that th« 

order was made next day for the marquis single testimony of a commomr is not 

of Winchester, the earls of Derby and sufficient against a peer. 



2i0 JURISDICTION IN APPEALS. Chap. XIII, 

one occasion reluctantly permitted an amendment of that 
nature to pass, took care to record their dissent from the 
principle by a special entry in the journal.^ An amendment 
having been introduced into a bill for regulating the press, 
sent up by the commons in the session of 1G61, which ex- 
empted the houses of peers from search tor unlicensed books, 
it. Avas resolved not to agree to it ; and the bill dropped 
for that time.^ Even in far more urgent circumstances 
while the parliament sat at Oxford in the year of the plague, 
a bill to prevent the progress of infection was lost, because 
the lords insisted that their houses should not be subjected 
to the general provisions for security.^ These ill-judged 
demonstrations of a design to exempt themselves from that 
equal submission to the law which is required in all well- 
governed states, and had ever been remarkable in our con- 
stitution, naturally raised a prejudice against the lords, both 
in the other house of parliament and among the common 
lawyers. 

This half-suppressed jealousy soon disclosed itself in the 
famous controversy between the two houses about 
abou" their the case of Skinner and the East India company, 
original ju- xhis began by a petition of the former to the 
' king, wherein he complained, that, having gone 
as a merchant to the Indian seas at a time when there w-as 
no restriction upon that trade, the East India company's 
agents had plundered his property, taken away his ships, and 
dispossessed him of an island which he had purchased from 
a native prince. Conceiving that he could have no sufficient 
redress in the ordinary courts of justice, he besought his 
sovereign to enforce reparation by some other means. After 
several ineffectual attempts by a committee of the privy 
council to bring about a compromise between the parties, the 
king transmitted the documents to the house of lords, with a 
recommendation to do justice to the petitioner. They pro- 
ceeded accordingly to call on the East India couipany for an 
answ^er to Skinner's allegations. The company gave in what 
is technically called a plea to the jurisdiction, which the 
house overruled. The defendants then pleaded in bar, and 
contrived to delay the inquiiy into the facts till the next 
session, when, the proceedings having been renewed, and the 

I Journals, Aug. 2 and 15, 1660. s Id. Oct. 31, 16G5. 

s Id. July 29, 1661 



CiiA. II. — Constitution. CASE OF SKINNER. 211 

plea to the lords jurisdiction again oifered and overruled, 
judgment was finally given that the East India company 
should pay 5000Z. damages to Skinner. 

IMeantime the company had presented a petition to the 
iiousfc of commons against the proceedings of the 
lords m this busmess. Jt was retei-red to a com- appeals from 
mittee .vho had already heen appointed to consider courts of 
some other cases of a like nature. They made a 
report, which pi'oduced resolutions to this effect — that the 
lords, in taking cognizance of an original complaint, and that 
relievable in the ordinary course of law, had acted illegally, 
and in a manner to deprive the subject of the benefit of the 
law. The lords in return voted, " That the house of com- 
mons entertaining the scandalous petition of the East India 
company against the lords' house of parliament, and their 
proceedings, examinations, and votes thereupon had and 
made, are a breach of the privileges of the house of peers, 
and contrary to the fair correspondency which ought to be 
between the two houses of parliament, and unexampled in 
former times ; and that the house of peers, taking cognizance 
of the cause of Thomas Skinner, merchant, a person highly 
oppressed and injured in East India by the governor and 
company of merchants trading thither, and overruling the 
plea of the said company, and adjudging 5000/. damages 
thereupon against the said governor and company, is agree- 
able to the laws of the land, and well warranted by the law 
and custom of parliament, and justified by many parliamen- 
tary precedents ancient and modern." 

Two conferences between the houses, according to the 
usage of parliament, ensued, in order to reconcile this dis- 
pute. But it was too material in itself, and aggravated by 
two m^.ch previous jealousy, for any voluntary compromise. 
The precedents alleged to j^rove an original jurisdiction in 
the peers weVe so thinly scattered over tlie record of centu- 
ries, and so contrary to the received principle of our consti- 
tution that questions of fact are cognizable only by a jury, 
that their managers in the conferences seemed less to insist 
on the general right than on a supposed inability of the 
courts jf law to give adequate redress to the present plaintiff; 
for w!.ich the judges had furnished some pretext, on a refer- 
ence as to their own competence to afford relief, by an 
answer more narrow, no doubt, than would ha\e been ren- 



242 QUARREL OF LORDS AND COMMONS. Chap. XIII 

dered at the present day. And there was really more to be 
said, both in reason and law, for tliis limited right of judica- 
ture, than for the absolute cognizance of civil suits by the 
lords. But the commons were not inclined to allow even of 
such a special exception from the principle for which they 
contended, and intimated that the power of affording a rem- 
edy in a defect of the ordinary tribunals could only reside in 
the Avhole body of the parliament. 

The proceedings that followed Avere intemperate on both 
sides. The^ommons voted Skinner into custody for a breach 
of privilege, and resolved that whoever should be aiding in 
execution of the order of the lords against the East India 
company should be deemed a betrayer of the liberties of the 
commons of England, and an infringer of the privileges of. 
the house. The lords^ in return, committed sir Samuel Bar- 
nardiston, chairman of the company, and a member of the 
house of commons, to prison, and imposed on him a fine of 
oOOL It became necessary for the king to stop the course 
of this quarrel, which was done by successive adjournments 
and prorogations for fifteen months. But on their meeting 
again, in October 1GG9, the commons proceeded instantly to 
renew the dispute. It appeared that Barnardiston, on the 
day of the adjournment, had been released from custody 
without demand of his fine, which, by a trick rather un- 
worthy of those who had resorted to it, was entered as paid 
on the records of the exchequer. This was a kind of victory 
on the side of the commons ; but it was still more material 
that no steps had been taken to enfoi'ce the order of the 
lords against the East India company. The latter sent down 
a bill concerning privilege and judicature in parliament, 
which the other house rejected on a second reading. They 
in return passed a bill vacating the proceedings against 
Barnardiston, which met with a like fate. In conclusion, 
the king recommended an erasure from the Journals of all 
that had passed on the subject, and an entire cessation ; an 
expedient which both houses willingly embraced, the one to 
secure its victory, the other to save its honor. From this 
time the lords have tacitly abandoned all pretensions to an 
original jurisdiction in civil suits.^ 

1 For the wliolo of this business, which and IlargraTo-s Preface to Ilale's Juris- 

la erased I'roiii the journals of both houses, diction of the Lords, 101. [A slight at- 

tee State Trials, v. 711 ; Pari. Hist. iv. tempt to revive the original jurisdiction 

131, 443 : Uatsell's Precedents, iii. 336 ; was made by the lords in 1702. Id. 196.] 



Cha. n. — Constitution. SHIRLEY — SIR JOHN FAGG 243 

The^haye, however, been more successful in establishing 
a branch of their ultimate jurisdiction which had less to be 
urged for it in respect of precedent, that of hearin^Jippeala 
from courts of equity. It is proved by sir IMatthnw Hale 
and" his editor, IMr. Hargrave, that the__lo-n.l3 did not enter- 
tain petitions of appeal before the reign of Chai-Ies T., and 
not perhaps unequivocally before the long parliament.* 
They became very common from that time, though hardly 
more so than original suits ; and, as they bore no analogy, 
except at first glance, to writs of error, which come to the 
house of lords by the king's express commission under the 
great seal, could not well be defended on legal grounds. But, 
on the other hand, it was reasonable that the vast power of 
the court of chancery should be subject to some control ; 
and though a commission of review, somewhat in the nature 
of the court of delegates in ecclesiastical appeals, might have 
been and had been occasionally ordered by the crown,^ yet, 
if the ultimate jurisdiction of the peerage were convenient 
and salutary in cases of common law, it was difficult to assign 
any satisfactory reason why it should be less so in those 
which are technically denominated equitable.^ Nor is it 
likely that the commons Avould have disputed this usurpation, 
in which the crown had acquiesced, if the lords had not 
received appeals against members of the other house. Three 
instances of this took place about the year 1075 ; but that of 
Shirley against sir John Fagg is the most celebrated, as 
having given rise to a conflict between the two houses as 
violent as that which had occurred in the business of Skin- 
ner. It began altogether on the score of privilege. As 
members of the house of commons were exempted from lei-al 
process during the session, by the general privilege of par- 
liament, they justly resented the pretension of the peers to 
disregard this immunity, and compel them to appear as 
respondents in cases of appeal. In these contentions neither 

1 Hale says, " I could never get to any Mohun and Lincoln severally protested ; 

precedent of greater antiquity than 3 the latter very sensibly observing, that, 

Car. I., nay, scarce before 16 Car. I., of wliere;us it hath been the pruilencc and 

any such proceeding iu the lords' house." care of former parliaments to set limits 

C. 33 ; ami sec llargrave's Preface, 53. and bounds to the jurisdiction of cban- 

S Id. c. 31. eery, now this order of directions, which 

' It wa-s ordered in a petition of Ilolv implies a command, opens a gap to set up 

ert Roberts, esri., that directions be given an arbitrary power in the chancery, which 

to the lord chancellor that he proceed to is hereby countenanced by the house of 

make a spc>edy decree in the court of lords to act, not according to the arcus- 

chancery, according to equity and jus- tomed rules or former precedents Df that 

tice, notwithstanding there be not any court, but according to hi.s own will 

precedent in the case. Af^ainst this lords Lorda' Journala, 29th Nov. 1G64. 



244 VOTE BY THE COMMONS. Chap XIIL 

party could evince its superiority but at the expense of inno- 
cent per.'^ons. It Avas a contempt of the one house to disobey 
its order, of the other to obey it. Four counsel, who had 
pleaded at the bar of the lords in one of the cases where a 
member of the other house Avas concerned, were taken into 
custody of the sergeant-at-arms by the speaker's warrant. 
The gentleman usher of the black rod, by Avarrant of the 
lords, empowering him to call all persons necessary to his 
assistance, set them at liberty. The commons apprehended 
them again ; and, to prevent another rescue, sent them to 
the Tower. The lords despatched their usher of the black 
rod to the lieutenant of the Tower, commanding him to 
deliver up the said persons. He replied that they were 
committed by order of the commons, and he could not re- 
lease them without their order ; just as, if the lords Avere 
to commit any person, he could not release him Avithout their 
lordships' order. They addressed the king to remove the 
ieutenant ; but, after some hesitation, he declined to comply 
with their desire. In this difficulty they had recourse, in- 
stead of the Avarrant of the lords' speaker, to a writ of habeas 
corpus returnable in parliament ; a proceeding not usual, but 
the legality of Avhich seems to be noAV admitted. The lieu- 
tenant of the ToAver, Avho, rathei unluckily for the lords, had 
taken the other side, either out of conviction or from a senia 
that the loAver house were the stronger and more formidable, 
instead of obeying the writ, came to the bar of the commons 
for directions. They voted, as might be expected, that the 
Avrit was contrary to law and the privileges of their house. 
But, in this ferment of two jealous and exasperated assem- 
blies, it was highly necessary, as on the former occa'^ion, for 
the king to interpose by a prorogation for three months. 
This period, hoAvever, not being sufficient to allay their ani- 
mosity, the house of peers took up again the appeal of Shirley 
in their next session. Fresh votes and orders of equal in- 
temperance on both sides ensued, till the king by the long 
prorogation, from NoA'cmber 1675 to February 1677, put an 
end to the dispute. The particular appeal of Shirlev Avas 
never revived ; but the lords continued Avithout objection to 
exercise their general jurisdiction over appeals from courts 
of equity.* The learned editor of Hale's Treatise on the 

1 It was thrown out against them by in 1704, hut not with any serious intea- 
the commons in their angry conferences tion of opposition. 
aboui the business of Ashby and Wbito. 



CiiA. II.— Constitution. MONEY-BILLS. 245 

Jurisdiction of the Lords expresses some degree of surprise 
at tlie commons' acquiescence in what they had treated as 
an usurpation. But it is evident from tlie whole course of 
proceeding that it was the brcacli of privilege in citing their 
own members to appear whicii excited their indignation. It 
was but incidentally that ihey observed in a conference " that 
the commons cannot find by Magna Cliarta, or by any other 
law or ancient custom of parliament, that your lorJships have 
any jurisdiction in cases of appeal from courts of equity." 
They afterwards, indeed, resolved that there lies no appeal 
to the judicature of the lords in parliament from courts of 
equity;^ and came ultimately, as their wrath increased, to a 
vote, " That Avhosoever shall solicit, plead, or prosecute any 
appeal against any commoner of England, from any court of 
equity, before the house of lords, shall be deemed and taken 
a betrayer of the rights and liberties of the connnons of 
England, and shall be proceeded against accordingly ; " ^ 
which vote the lords resolved next day to be " illegal, unpar- 
liamentary, and tending to a dissolution of the government." ^ 
But this was evidently rather an act of hostility arising out 
of the immediate quaiTel than the calm assertion of a legal 
principle.'* 

During the interval between these two dissensions, which 
the suits of Skinner and Shirley engendered, an- Q^ggti^^ ^f 
other difference had arisen, somewhat less violently the exclusive 
conducted, but wherein both houses considered "o°mmons m 
their essential privileges at stake. This concerned to money- 
the long-agitated question of the right of the lords 
to make alterations in money-bills. Tliough I cannot but 
think the importance of their exclusive privilege has been 
ratlier exaggei'ated by the house of commons, it deserves 
attention ; more especially as the embers of that fire may 

1 C. J., May 30. It may be obserred that tha lords 

'- Id. Nov 19. Several divisions took learned a little caution in this affair. Au 

place in the course of this business, and appeal of one Cottington from the court 

Bonie rather close ; the court endeavor- of delegates to their house was rejected 

icg to allay the fire. The vote to take by a vote that it did not properly belong 

sergeant I'emberton into custody for ap- to them, Shaftesbury alone dissentient. 

pearing as counsel at the lords' bar was June 17, 1C78. Yet they had asserted 

only fcirried by lu-t to 146 on June 1. their right to receive appeals from inferior 

•• Ixirds' Journals, Nov. 20. courts, that there might be no failure of 

* Lords' and Commons' Journals, May justice, in terms large enough toembrac* 

and November, 1G75 ; I'arl. Ilist. 721, the ecclesiastical jurisdiction. May 6, 

791 ; State Trials, vi. 1121 ; Ilargrave's 1075. And it is s;iid that they actually 

I'refarc to Uale, l36 ; and Ilule's Trea.- bad done so in 1628. Uurgrave, 63. 

tise, c 33. 



24G MONEY-BILLS. Chap. XIH. 

not be so wliolly exfinguished as never again to show sorao 
traces of its heat. ^ ^^ /(T' , ■ 

In our earliest parliamentary records the lords and com- 
mons, summoned in a great measure for the sake 
^ ^' of relieving the king's necessities, appear to have 
made their several grants of supply without mutual commu- 
nication, and the latter generally in a higher proportion than 
the former. These were not in the form of laws, nor did 
they obtain any formal assent from the king, to whom they 
were tendered in written indentures, entered afterwards on 
the roll of parliament. The latest instance of such distinct 
grants from the two houses, as far as I can judge from the 
rolls, is in the 18th year of Edward III.^ But" in the 22d 
year of that reign the commons alone granted three fifteenths 
of their goods, in such a manner as to show beyond a doubt 
that the tax was to be levied solely upon themselves.^ After 
this time the lords and commons are jointly recited in the 
rolls to have granted them, sometimes, as it is expressed, 
upon deliberation had together. In one case it is said that 
the lords, with one assent, and afterwards the commons, 
granted a subsidy on exported wool.® A change of language 
is observable in Richard II.'s reign, when the commons are 
recited to grant with tiie assent of the lords ; and this seems 
to indicate, not only that in practice the vote used to origi- 
nate with the commons, but that their proportion, at least, of 
the tax being far greater than that of the lords (especially in 
the usual impositions on wool and skins, which ostensibly 
fell on the exporting merchant), the grant was to be deemed 
mainly theirs, subject only to the assent of the other house 
of parliament. This is, however, so explicitly asserted in a 
remarkable passage on the roll of 9 Hen. IV., without any 
apparent denial, that it cannot be called in question by any 
one.* The language of the rolls continues to be the same in 
the following reigns ; the commons are the granting, the lords 
the consenting power. It is even said by the court of king's 
bench, in a year-book of Edward IV., that a grant of money 
by the commons would be binding without assent of the 
lords ; meaning of course as to commoners alone. I have 
baen almost led to suspect, by considering this remarkable 

Rot. Pari. ii. 148. * Rot. Pari. ill. 611. View of Middta 

» la. 200. Ages, u. 310. 

« Id. 300 (43 Edw. 3). 



Cha. 11. — Constitution. MONEY-BILLS. 247 

exclusive privilege of originating grants of money to the 
crown, as well as by the langiuige of some passages in the 
rolls of parliament relating to them, that no part of the direct 
taxes, the tenths or fifteenths of goods, were assessed upon 
the lords temporal and spiritual, except where they are posi- 
tively mentioned, which is frequently the case. But, as I do 
not remember to have seen this anywhere asserted by those 
who have turned their attention to the antiquities of our 
constitution, it may possibly be an unfounded surmise, or at 
least only applicable to the earlier period of our parliamen- 
tary records. 

These grants continued to be made as before, by the con- 
sent indeed of tlie houses of parliament, but not as legislative 
enactments. Most of the few instances wliere they appear 
among the statutes are where some condition is annexed, or 
some relief of grievances so interwoven with them that they 
make part of a new law.^ In the reign of Henry VII. they 
are occasionally inserted among the statutes, though still 
without any enacting words.^ In that of Henry YIII. the 
form is rather more legislative, and they are said to be 
enacted by the authority of parliament, though the king's 
name is not often mentioned till about the conclusion of his 
reign ; * after which a sense of the necessity of expressing 
his legislative authority seems to have led to its introduction 
in some part or other of the bill.^ The lords and commons 
are sometimes both said to grant, but more frequently the 
latter with the former's assent, as continued to be the case 
through the reigns of Elizabeth and James I. In the first 



> 14 E. 3, Stat. 1, c. 21. This stitute propriation, which had escaped me, 

Is Mmarkable for a promise of the lords though I have elsewhere quoted that In 

not to a-ssent in future to any charge be- 5 Kich. 2, stjit. 2, c. 2 & 3. In two or 

yond the old custom, without assent of three instances we find gnints of tenths 

the commons in full parliament. Stat. 2, and fifteenths in the statutes, without 

same yeiir : the kinu; promises to lay on any other matter, as 14 E. 3, stat. 1, c. 20; 

no charij;e but bv a-stent of the lords and 27 E. 3, stjit. 1, c. 4. 

commons. 13 E."3. stat. 2, c. 1 : the com- 2 ; n. 7, c. 11 ; 12 II. 7, c. 12. 

mons grant two fifteenths of the com- 3 j find only one exception, 5 11. 8, 

moualty, and two tenths of the cities and c. 17, which was in the now common 

boroughs. " Et en cas que notre signeur form : Be it enacted by the king our sov- 

le roi piusse la mer, de paier a mesmes les ereign lord, and by the a.«sent, &c. 

tems les quinzisme et disme del second * In 37 II. 8, c. 25, both lords and 

an, et neray en autre maniero. Issint que commons are said to grant, and they pray 

les deniers de ce levez soient despeudus, that their grant " may be ratlfieil and 

en les besoignes a eux monstez a cest confirmed by his miijesty's royal assent, 

parlement, par avis des grauntz a ce as- so to be enacted and authorized by virtue 

signez, et que les aides de la Trent soient of this present parliament as in such 

mys en defen-oe de north." This is a re- cases heretofore has been accustoms! " 
markable precedent for the usage of ap- 

VOL. II. — c. 17 



248 MONEY-BILLS. Chap. Xlll 

parliament of Charles I. the commons began to omit the 
name of the lords in the preamble of bills of supply, re- 
citing the grant a^ if wholly their own, but in the enacting 
words adopted the customary form of statutes. This, tnough 
once remonstrated against by the upper house, has continued 
ever since to be the practice. 

The originating power as to taxation was thus indubitably 
placed in the house of commons ; nor did any controversy 
ai'ise upon that ground. But they maintained also that the 
lords could not make any amendment whatever in bills sent 
up to them for imposing, directly or indirectly, a charge upon 
the people. There seems no proof that any difference be- 
tween the two houses on this score had arisen before the 
Restoration ; and in the convention parliament the lords made 
several alterations in undoubted money-bills, to which the 
commons did not object. But in 1661, the lords having sent 
down a bill for paving the streets of WesTmiiister, to which 
they desired the concurrence of the commons, the latter, on 
reading the bill a first time, " observing that it went to lay a 
charge upon the people, and conceiving that it was a privi- 
lege inherent in their house that bills of that nature should be 
first considered there," laid it aside, and caused another to be 
brought in.^ When this was sent up to the lords, they in- 
serted a clause to which the commons disagreed, as contrary 
to their privileges, because the people cannot have any tax 
or charge imposed upon them, but originally by the house of 
commons. The lords resolved this assertion of the commons 
to be against the inherent privileges of the house of peers ; 
and mentioned one precedent of a similar bill in the reign of 
Mary, and two in that of Elizabeth, which had begun with 
Ihem. The present bill was defeated by the unwillingness 
af either party to recede ; but for a few years after, though 
the point in question was still agitated, instances occur where 
the commons suffei'ed amendments in what were now consid- 
ered as morey-bills to pass, and others where the lords reced- 
ed from them rather than defeat the proposed measure. In 
April 1671, however, the lords having reduced the amount 
of an imposition on sugar, it was resolved by the other house, 
" That, in all aids given to the king by the commons, the rate 
or tax ought not to be altered by the lords." " This brought 

1 Commons' Journals, 24, 29 July ; sell's Precedents, iii. 100, for this subject 
Lords' Journals, 30 July. See also Hat- of supply. 

3 Tliey expressed this »rith stranj;;* 



LHA. II. — Constitution. MONEY-BILLS. 249 

on several conferences between the houses, wherein the limits 
of the exclusive privilege claimed by the commons were dis- 
cussed with considerable ability, and less heat than in the dis- 
putes concerning judicature ; but, as I cannot help thinking, 
with a decided advantage both as to precedent and constitu- 
tional analfigyjfirLihe side of the peers.^ If the commons, as 
in early times, had merely granted, their own money, it would 
be reasonable that their hou-e should have, as it claimed to 
have, " a fundamental right as to the matter, the measure, 
and the time." But that the peers, subject to the same bur- 
dens as the rest of the community, and possessing no trifling 
proportion of the general wealth, should have no other alter- 
native than to refuse the necessary supplies of the revenue, 
or to have their exact proportion, with all qualifications and 
circumstances attending their grant, presented to them unal- 
terably by the other house of parliament, was an anomaly 
that could hardly rest on any other ground of defence than 
such a series of precedents as e,-tablish a constitutional usage ; 
while, in fact, it could not be made out that such a pretension 
was ever advanced by the commons before the present parlia- 
ment. In the short parliament of April 1640, the lords hav- 
ing sent down a message, requesting the other house to give 
precedency, in the business they were about, to matter of sup- 
ply, it had been highly resented as an infringement of their 
privilege ; and Mr. Pym was appointed to represent their 
complaint at a conference. Yet even then, in the fervor of 
that critical period, the boldest advocate of popular privileges 
who could have been selected was content to assert that the 
matter of subsidy and supply ought to begin in the house 
of commons.^ 

There seems to be still less pretext for the great extension 
given by the commons to their acknowledged privilege of 

latitude in a resolution some years after, point of Impositions," 1C96, a vigorous 
that all aids and supplies to his majesty and le^amed defence of the right of the 
la ^.arliament are the salt gift of the rom- lords to make alterations in iiioiiey-bills, 
r?ic'ns. Pari. Ilist. 1005. As they did it i.s admitted that they cannot incre.i«e 
not mean to deny that the lord.s must the ratc.i ; since that would he to originate 
concur in the bill, much le.ss that they a charge on the people, which they can- 
must pay thf'ir quota, this language not do. But it i.s even said in the year- 
geeins indefensible. book, 33 H. 6, that, if the commons grant 

1 Lords' and Commons" Journals, .\pril tonnage for four years, and the lords 

17th and 22d, 1679. Pari. Hist. iv. reduce the terms to two years, they need 

480. IIatseU"s Precedents, iu. 109, 308, not tend the bill do^vn again. This of 

409. course could not be supported in moden 

In a pamphlet by fjord Anglesea, if I times, 
mistake not, entitled " Case stated of the 3 Parl. Hist. ii. 663. 
•Jurisdiction of the Ilouse of liords in 



250 EXTENSION OF RIGHT. Chap. XIH 

originating bills of supply. The principle was well a^lapted 
The right ^^ ^^^^^ car'ier period when secui'ity against misgov- 
extended ernment could only be obtained by the vigilant 
rtuer. jealousy and uncompromising firmness of the com- 
mons. They came to the grant of subsidy with real or feigned 
reluctance, as the sti[)ulated price of redress of grievances. 
They considered the lords, generally speaking, as too intimately 
united with the king's ordinary council, whicli indeed sat with 
them, and had, perhaps as late as Edward III.'s time, a de- 
liberative voice. They knew the influence or intimidating 
ascendency of the peers over many of their own members. 
It may be doubted in fact whether the lower house shook otf, 
absolutely and permanently, all sense of subordination, or at 
least deference, to the upper, till about the close of the reign 
of Elizabeth. But I must confess that, when the wise and 
ancient maxim, that the commons alone can empower the 
king to levy the people's money, was applied to a private 
bill for ligliting and cleansing a certain town, or cutting 
dikes in a fen, to local and limited assessments for local bene- 
fit (as to which the crown has no maimer of intei'est, nor has 
anything to do with the collection), there was more disposi- 
tion shown to make encroachments than to guard against 
those of others. They began soon after the Revolution to 
introduce a still more extraordinary construction of their 
privilege, not receiving from the house of lords any bill which 
imposes a pecuniary penalty on offenders, nor permitting 
them to alter the application of such as had been imposed 
below.^ 

These restrictions upon the other house of parliament, how- 
ever, are now become, in their own estimation, the stiuiding 
privileges of the commons. Several instances have occurred 
during the last century, though not, I believe, very lately, 
when bills, chiefly of a private nature, have been unanimously 

1 The principles laid down by Hatsell penalties in a bill, or alter those inserted 
are: 1. Tiiat in bills of supply the lords by the commons, iii. 137. lie seems to 
can make no alteration but to correct botist that the lords during the last cen- 
verbal mistakes. 2. That in bills, not of tury have very faintly opposed the claim 
absolute supply, yet imposing burdens, of the commons. But surely they have 
88 turnpike acts, &c., the lords cannot sometimes done so in practice by return- 
alter the quantum of the toll, the persons ing a money-bill, or what the lower 
to manage it, &c. ; but in other clauses house call one, amended ; and the com- 
they may make amendments. 3. That nions have had recourse to the evasion of 
where a charge may indirectly be thrown throwing out such bill, and briugijig in 
on the people by a bill, the commons another with the amendments inserted 
object to the lords making amendments, in it, which iocs not look very trium- 
4. That the lords cannot insert pecuniary phant. 



Cha-Ii.- -Constitution NUMBER OF TEMPORAL LORDS. 251 

rejected, and even thrown over the table bj the speaker, be- 
cause they contained some provision in which the lords 
had trespassed upon these alleged rights.^ They are, as may 
be supposed, very differently regarded in the neighboring 
chamber. The lords have never acknowledged any further 
privilege than that of originating bills of supply. But the 
good sense of both parties, and of an enlightened nation, who 
Diust witness and judge of their disputes, as well as the natu- 
I'al desire of the government to prevent in the outset any al- . 
tercation that must impede the course of its measures, have 
rendered this little jealousy unproductive of those animosities 
which it seemed so happily contrived to excite. The one 
house, without admitting the alleged privilege, has generally 
been cautious not to give a pretext for eagerly asserting it ; 
and the other, on the trifling occasions where it has seemed, 
perhaps unintentionally, to be infringed, has commonly re- 
sorted to the moderate course of passing a fresh bill to the 
Bame effect, after satisfying its dignity by rejecting the first. 

It may not be improper to choose the present occasion for 
a summary view of the constitution of both houses state of the 
of parliament under the lines of Tudor and Stuart, upp^r house 
Of their earlier history the reader may find a brief TuUors and 
and not, I believe, very incorrect account, in a work Stuarts. 
to which this is a kind of sequel. 

The number of temporal loixls summoned by writ to the 
parliaments of the house of Planta";enet was ex- , 

■,■ , ■ 1 • Augmenta- 

ceedmgly various ; nor was anythuig more com- tion of the 
mon in the fourteenth century than to omit those [q"^""^^ 
who had previously sat in person, and still more 
their descendants. They were rather less numerous, for this 
reason, under the line of Lancaster, when the practice of 
summoning those who were not hereditary peers did not so 
much prevail as in the preceding reigns. Fifty-three names, 
however, a|)pear in the i)arliament of 1454, the last held be- 
fore the commencement of the great contest between York and 
Lancaster. In this troublous period of above thirty years, 
if the whole reign of Edward IV. is to be included, the chiefs 
of many powerful families lost their lives in the field or on 



1 The last instance mentioned by Hat- landowners to the occupiers : lii. 131. 1 

sell is in 1790, when the lonj.-i had ami-iid- am not at present aware of any subse- 

ed a bill for regulating Warwick jail by quent case, but rather suspect that suck 

changing the rate to be imposed froui the might be found. 



2r»2 STATE OF THE UPPER HOUSE Chai-. XIII 

the scafFold, and their honors perished with them by attain- 
der. New families, adherents of the victorious party, rose in 
their place ; and -.oiiietimes an attainder was reversed by 
ftivor ; so that the peers of Edward's reign were not much 
fewer than the number I have mentioned. Henry VII. sum- 
moned but twenty-nine to his first parliament, including some 
who^^e attainder had never been judicially reversed ; a plain 
act of violence, like his previous usurpation of the crown. 
In his subsequent parliaments the peerage was increased by 
fresh creations, but never much exceeded forty. The great- 
est number summoned by Henry VIII. w^as fifty-one ; which 
continued to be nearly the average in the two next reigns, 
and was very little augmented by Elizabeth. James, in his 
thoughtless profusion of favor, made so many new creations, 
that eighty- two peers sat in his first parliament, and ninety- 
six in his latest. From a similar facility in granting so 
cheap a reward of service, and in some measure perhaps 
from the pAioy of counteracting a spirit of opposition to the 
court, which many of the lords had begun to manifest, Charles 
called no less than one hundred and seventeen peers to the 
parliament of 1628, and one hundred and nineteen to that of 
November, 164:0. Many of these honors were sold by both 
these princes ; a disgraceful and dangerous practice, unheard 
of in earlier times, by which the princely peerage of England 
might have been gradually levelled with the herd of foreign 
nobility. This has, occasionally, though rarely, been sus- 
pected since the Restoration. In the parliament of 1661 we 
find one hundred and thirty-nine lords summoned. 

The spiritual lords, who, though forming another estate in 
parliament, have always been so united with the temporality 
that the suffrages of both upon every question are told indis- 
tinctly and numerically, composed in general, before the Ref- 
ormation, a majority of the upper house ; though there was 
far more irregularity in the summonses of the mitred abbots 
and priors than those of the barons. But by the surrender 
and dissolution of the monasteries, about thirty-six votes of 
the clergy on an average were withdrawn from the parlia- 
ment ; a loss ill compensated to them by the creation of five 
new bishoprics. Thus, the number of the temporal peers 
being continually augmented, while that of the prelates was 
confined to twenty-six, the direct influence of the church on 
the legislature has become comparatively small ; and that of 



v^HA. :i. — Couslitution. UNDEU TUDOKS AND STUARTS. 253 

the crown, which, by the pernicious system of trarislationa 
and other means, is generally powerful with the episcopal 
bench, has, in this respect at least, undergone some diminu- 
tion. It is easy to perceive from this view of the case that 
the destruction of the monasteries, as they then stood, waa 
looked upon as an indispensable preliminary to the Retbrma- 
tion ; no peaceable efforts towards which could have been 
effectual without altering the relative proportions of the 
spiritual and temporal aristocracy. 

The house of lords, during this period of the sixteenth and 
seventeenth centuries, were not supine in rendei'ing their col- 
lective and individual riglits independent of the crown. It 
became a fundamental principle, according indeed to ancient 
authority, though not strictly observed in i-uder times, that 
every peer of full age is entitled to his writ of summons at 
the beginning of a parliament, and that the house will not 
proceed on business if any one is denied it.^ The privilege 
of voting by proxy, which was originally by special permis- 
sion of the king, became absolute, though subject to such 
limitations as the house itself may impose. The writ of 
summons, which, as I have observed, had in earlier ages 
(if usage is to determine that which can rest on nothing but 
usage) given only a right of sitting in the parliament for 
which it issued, was held, about the end of Elizabeth's reign, 
by a construction founded on later usage, to convey an in- 
heritable peerage, which was afterwards adjudged to descend 
upon heirs general, female as well as male ; an extension 
which sometimes raises intricate questions of descent, and, 
though no materially bad consequences have flowed from it, 
is perhaps one of the blemishes in the constitution of [)arlia- 
ment. Doubts whether a peerage could be surrendered to 
the king, and whether a territorial honor, of which hardly 
any remain, could be alienated along with the land on which 
it depended, were determined in tlie manner most favorable 
to the dignity of the aristocracy. They obtained also an im- 
portant privilege; first of recording their dissent in the jour- 
nals of the house, and aficj'wards of inserting the grounds of 

1 See the case of tlie earl of Arundel sparing of writs of this nature for th« 

In parliament of 1626. Ir one instance future. 20tli Oct. 1667. Tlie king uiaUa 

the house took notice that a writ of sum- an excuse that he did not know the e»rJ 

mon.s had been issued to the eurl of Mul- wivs much uiid?r age, and would be care 

grave, he being under age, and addressed ful for the future. 29th Qjt. 
the \diig that he would be pleased to be 



254 STATJi OF THE COMMONS. Ohap XllL 

it. Instances of the former occur not unfrequently at thrj 
period of the Reformation : but the latter practice was little 
known before the long parliament. A right that Cato or 
Phocion would have prized, though it may sometimes have 
been frivolously or factiouslj exercised ! 

Tlie house of commons, from the earliest records of its reg- 
State of the "''"" existence in the 23d year of Edward I., con- 
commons. sistcd of scvcnty-four knights, or representatives 
from all the counties of England, except Chester, Durham, 
and iNIonmonth, and of a varying number of deputies from 
the cities and boroughs ; sometimes, in the earliest period of 
representation, amounting to as many as two hundred and 
sixty ; sometimes, by the negligence or partiality of the 
sheriffs in omitting places that had formeny returned mem- 
increaseof bers, to not more than two thirds of that number, 
their mem- New boroujjhs, liowever, as being grown into 

bers • r- • ° . . 1 

importance, or irom some private motive, acquu-eu 
the franchise of election ; and at the accession of Henry 
VIII. we find two hundred and twenty-four citizens and bur- 
gesses from one hundred and eleven towns (London sending 
four), none of which have since intermitted their privilege. 

I must so far concur with those whose general principles 
„ .. as to the theory of parliamentary reform leave 

Question as p,,-, ^ n •^.- , , 

to rigiits of me far behind, as to profess my opinion tiiat the 
election. change which appears to have taken place in the 
Enjrlish government towards the end of the thirteenth cen- 
tury was founded upon the maxim that all who possessed 
landed or movable property ought, as freemen, to be bound 
by no laws, and especially by no taxation, to which they had 
not consented through their representatives. If we look ai 
the constituents of a house of commons under IMward I. oi 
Edward III., and consider the state of landed tenures and of 
commerce at that period, we shall perceive that, excepting 
women, who have generally been supposed capable of no 
political right but that of reigning, almost every one who con- 
tributed towards the tenths and htteenths granted by the par- 
liament might have exercised the franchise of voting for those 
who sat in it. Were we even to admit that in corporate 
boroughs the franchise may have been usually vested in the 
freemen rather than the inhabitants, yet this distinction, so 
important in later ages, was of little consequence at a time 
when all traders, that is, all who possessed any movable 



Cha. II. — Constitution. RIGHTS OF ELECTION. 255 

property worth assessing, belonged to the former class. I do 
not pretend that no one was contributory to a subsidy who 
did not possess a vote, but that the far greater portion was 
levied on those who, as ft-eeholders or burgesses, were reck- 
oned in hiw to have been consenting to its imposition. It 
would be difficult probably to name any town of the least 
consideration in the fourteenth and fifteenth centuries which 
did not, at some time or other, return members to parliament. 
Tliis is so much the case that if, in running our eyes along 
the map, we find any seaport, as Sunderland or Falmouih, or 
any inland town, as Leeds or Birmingham, wliich has never 
enjoyed the elective franchise, we may conclude at once 
that it has emerged from obscurity since the reign of Henry 
VII 1. 1 

Though scai-ce any considerable town, probably, was inten- 
tionally left out, except by the sheriffs' partiality, it is not to 
be suppos(;d that all boroughs that made returns were consid- 
erable. Several that are currently said to be decayed were 
never much better than at present. Some of these were the 
ancient demesne of the crown ; the tenants of which, not be- 
ing suitors to the county courts, nor voting in the election of 
knights for the shire, were, still on the same principle of con- 
sent to public burdens, called upon to send their own re[)re- 
sentatives. Others received the privilege along with iheir 
charter of incorporation, in the hope that they would thrive 
more than proved to be the event ; and possibly, even in 
such early times, the idea of obtaining influenoe in the com- 
mons through tiie votes of their burgesses might sometimes 
suggest itself. 

Tliat, amidst all this care to secure the positive right of 
representation, so little provision should have been made as 
to its relative efficiency, that theliigh-born and opulent gentry 
should have been so vastly outnumbered by peddling traders, 
I hat the same number of two should have been deemed suffi- 
cient for the counties of York and Rutland, for Bi'istol and 
Gatton, are facts more easy to wonder at than to ex[)lam ; for 
though the total ignorance of the •government as to the rela- 
tive population might be perhaps a sufficient reason for not 
making an attempt at equalization, yet, if the representation 

1 Though the proposition in the text is, in the northern parts of Kngl.ind ; anj 
I believe, genenilly true, it has occurred that both Sheffield and Manchester art 
to me 8ince that there are some exceptions among tb >m. 



256 mCREASE OF MEMBERS OF (.Juap. Xlll 

had been founded on anything like, a numerical principle) 
there would have been no difficulty in reducing it to the pro- 
portion furnislied by the bookd of sub^iily for each county 
and borough, or at least in a rude approximation towards 
u more rational distribution. 

Henry VIII. gave a remarkable proof that no part of the 
kingdom, subject to the English laws and parliamentary 
burdens, ought to want its representation, by extending the 
right of election to the whole of Wales, the counties of Clies 
ter and Monmouth, and even the towns of Berwick and 
Calais. It might be possible to trace the reason wliy the 
county of Durham was passed over. The attachment of 
tliose northern parts to popery seems as likely as any other. 
TJiirty-three were thus added to the commons. Edward VI. 
O'cated fourteen boroughs, and restored ten that had dis- 
used their privilege. Mary added twenty-one, Elizabeth 
sixty, and James twenty-seven members. 

Tbese accessions to the popular chan ber of parliament 
after the reign of Henry VIII. were by no means derived 
from a popular principle, such as had influenced its earlier 
constitution. We may account perhaps on this ground for 
the writs addressed to a very few towns, such as Westminster. 
But the design of that great influx of new members from 
petty boroughs, which began in the short reigns of Edward 
and Mary, and continued under Ehzabeth, must have been to 
secui'e the authority of government, especially in the succes- 
sive revolutions of religion. Five towns only in Cornwall 
made returns at the accession of Edward VI. ; twenty -one 
at the death of Elizabeth. It will not be pretended that the 
wretched villages, which corruption and perjury still hardly 
keep from famine, were seats of commerce and industry in 
the sixteenth century. But the county of Cornwall was 
more immediately subject to a coercive influence, through the 
indefinite and oppressive jurisdiction of the stannary court. 
Similar motives, if we could discover the secrets of those 
governments, doubtless operated in most other cases. A 
slight difficulty seems to have been raised in 1563 about the 
introduction of representatives from eight new boroughs 
at once by chartei-s from the crown, but was soon waived 
with the complaisance usual in those times. Many of the 
towns which had abandoned their privilege at a time when 
they were compelled to the payment of daily wages to theii 



Cha. n. — Constitution. THE COMMONS' HOUSE. 257 

members during the session, were now desirous of recovej-ing 
it when that burden had ceased and tlie franchise had be- 
come vaUuxble. And the house, out of favor to popuUir 
rights, laid it down in the reign of James I. as a principle, 
that every town which has at any time returned members to 
parliament is entitled to a writ as a matter of course. The 
speaker accordingly issued writs to Hertford, Pomfret, II- 
chester, and some other places, on their petitit)n. The 
rcslorations of boroughs in this manner, down to 1641, are 
hfteen in number. But though the doctrine that an elective 
right cannot be lost by disuse is still current in parliament, 
none of the very numerous boroughs which have ceased to 
enjoy that francluse since the days of the three first Edwards 
have from the Restoration downwards made any attempt at 
retrieving it ; nor is it by any means likely that they would 
be successful in the application. Charles 1., whose temper 
inspired him rather with a systematic abhorrence of parlia- 
ments than with any notion of managing them by influence, 
created no new boroughs. The right indeed would certainly 
have been disputed, hov/ever frequently exercised. In 1673 
the county and city of Durham, which had strangely been 
unrepresented to so late an era, were i*aised by act of parlia- 
ment to the privileges of their fellow-subjects.^ About the 
same time a charter was granted to the town of Newark, en- 
abling it to return two bui-gesses. It passed with some little 
objection at the time; but four years afterwards, after two 
debates, it was carried on the que-stion, by 125 to 73, that, by 
virtue of the charter granted to the town of Newark, it hath 
right to send burgesses to serve in parliament.^ Notwith- 
standing this apparent recognition of the king's prerogative 
to summon burgesses from a town not previously represented, 
no later instance of its exercise has occurred ; and it would 
unquestionably have been resisted by the commons, not, as is 
vulgarly supposed, because the act of union with Scotland 
has limited the English members to 513 (which is not the 
case), but upon the broad maxims of exclusive privilege in 
matters relating to their own body, which the house was be- 
come powerful enough to assert against the crown. 

It is doubtless a problem of no inconsiderable difficulty to 

1 25 Oar. 2, c. 9. A bill bad passed tbe 2 Joumala, 26th Feb. and 20tb March 
eommons in 1624 for the same effect, but 167&-7. 
tisdled through the dissolution. 



258 ORIGINAL RIGHT OF THF. Chap. XIII. 

determine with perfect exactness by what class of persons 
the elective franchise in ancient boroughs was originally pos- 
Foiir differ- sesscd ; yet not perhaps so much so as the care- 
ent theories lessness of somc, and the artifices of others, have 
original causcd it to appear. The different opinions on 

pnncipie. ^j^j^ controverted question may be reduced to the 
four following theses : — 1. The original right, as enjoyed 
by boroughs represented in the parliaments of Edward I.. 
and all of later creation, where one of a different nature has 
not been expressed in the charter from which they derive the 
privilege, was in the inhabitant householders resident in the 
borougli, and paying scot and lot ; under those words includ- 
ing local rates, and probably general taxes. 2. The right 
sprang from the tenure of certain freehold lands or burgages 
within the borough, and did not belong to any but such ten- 
ants. 3. It was derived from charters of incorpoi'ation, and 
belonged to the community or freemen of the corporate body. 
4. It did not extend to the generality of freemen, but was 
limited to the governing part or municipal magistracy. 
The actual right of election, as fixed by determinations of 
the house of commons before 1772, and by committees under 
the Grenville Act since, is variously grounded upon some of 
the~e four principal rules, each of which has been subject to 
subordinate modifications which produce still more complica- 
tion and irregularity. 

Of these propositions the first was laid down by a cele- 
Tiieirproi> brated committee of the house of commons in 
ability con- 1624, the chairman whereof was sergeant Glan- 
ville, and the members, as appears by tlie list in 
the Journals, the most eminent men, in respect of legal and 
constitutional knowledge, that were ever united in such a 
body. It is called by them the common-law right, and thai 
which ought always to obtain where presci'iptive usage to 
the contrary cannot be shown. But it has met with very 
little favor from the house of commons since the Restoration. 
The second has the authority of lord Holt in the case of 
Ashby and White, and of some other lawyers who have 
turned their attention to the subject. It countenances what 
is called the right of burgage tenure ; the electors in boroughs 
of this description being such as hold burgages or ancient 
tenements within the borough. The next theory, which 
attaches the primary fi-aachise to the freemen of corpora- 



Cha. II.— Constitutiou. ELECTFV'E FRANCHISK 259 

tions, has on the whole been most received in modern times, 
if we look either at the decisions of the proper tribunal, or 
the current doctrine of lawyers. The last proposition is that 
of Dr. Brady, who, in a treatise of boroughs, wi-itten to 
serve the purposes of James II., though not pubrk->hed till 
after the Revolution, endeavored to settle all elective rights 
on the narrowest and least popular basis. This work gained 
some credit, which its perspicuity and acuteness would de- 
serve, if these were not disgraced by a perverse sophistry 
and suppression of truth. 

It does not appear at all probable that such varying and 
indefinite usages as we find in our present representation of 
boroughs could have begun simultaneously, when they were 
first called to parliament by Edward I. and his two next de- 
scendants. There would have been what may be fairly 
called a common-law right, even were we to admit that some 
variation from it may, at the very commencement, have oc- 
curi-ed in particular places. The earliest writ of summons 
directed the sheriff" to make a return from every borough 
within his jurisdiction, without any limitation to such as had 
obtained charters, or any rule as to the electoral body. 
Charters, in fact, incorporating towns seem to have been by 
no means common in the thirteenth and fourteenth centuries ; 
and though they grew more frequent afterwards, yet the 
first that gave expressly a right of returning members to 
parliament was that of Wenlock, under Edward IV. These 
charters, it has been contended, were incorporations of the 
inhabitants, and gave no power either to exclude any of 
them, or to admit non-resident strangers, according to the 
practice of later ages. But, however this may be, it is 
highly probable that the word burgess (burgensis), long be- 
fore the elective franchise or the character of a corporation 
existed, meant literally the free inhabitant householder of a 
borough, a member of its court-leet, and subject to its juris- 
diction. We may, I believe, reject with confidence what I 
have reckoned as the third proposition ; namely, that the 
elective franchise belonged, as of common right, to the free- 
men of corporations ; and still more that of Brady, which 
few would be found to support at the present day. 

There can, I should conceive, be little pretence for affect- 
ing to doubt that the burgesses of Domesday-book, of the 
various early records cited by Madox and others, and of the 



260 ORIGINAL RIGHT OF THE Chaj?. XIIi. 

writs of summons to Edward's parliament, were inhabitants 
of tenements within the borough. But it may remain to be 
proved tliat any were entitled to the privileges or rank of 
burgesses who held less than an estate of freehold in their 
[)os?essiuns. The burgage tenure, of which Ave read in Lit- 
tleton, was evidently freehold ; and it might be doubtful 
whether the lessees of dwellings for a term of years, whose 
interest, in contemplation of law, is far inferior to a free- 
liold, were looked upon as sufliciently domiciled within the 
borougli to obtain the appellation of burgesses. It appears 
from Domesday that the burgesses, long before any incor- 
porition, held lands in common belonging to their town ; 
they had also their guild or market-house, and were entitled 
in some places to tolls and customs. Tiiese permanent rights 
seem naturally restrained to those who possessed an abso- 
lute property in the soil. There can surely be no question 
as to mere tenants at will, liable to be removed from their 
occupation at the pleasure of the lord ; and it is perhaps un- 
necessary to mention that the tenancy from year to year, so 
usual at present, is of very recent introduction. As to 
estates for a term of years, even of considerable duration, 
they were probably not uncommon in the time of Edward I. ; 
yet for outnumbered, as I should conceive, by those of a 
freehold nature. Whether these lessees were contributory 
to the ancient local burdens of scot and lot, as well as to 
the tallages exacted by the king, and tenths afterwards im- 
posed by parliament in respect of movable estate, it seems 
not easy to determine ; but if they were so, as appears more 
probable, it was not only consonant to the principle that no 
freeman should be liable to taxation without the consent of 
his representatives, to give them a share in the general priv- 
ilege of tlie borough, but it may be inferred with sufficient 
evidence from several records that the privilege and the 
burden were absolutely commensurate ; men having been 
specially discharged from contributing to tallages because 
they did not participate in the liberties of the borough, and 
others being expressly declared subject to those impositions 
as the condition of their being admitted to the rights of bur- 
gesses.^ It might however be conjectured that a difterence 
of usage between those boroughs where the ancient exclusive 

1 Madox Firma, Burgi, p. 270, et post 



Cap. II, —Constitution. ELECTIVE FRANCHISE. 261 

rights Df burgage tenants were maintained, and tliose where 
the equitable tdaim of taxable inliabitants possessing only a 
chattel interest received attention, might ultimately produce 
those very opposite species of franchise which we find in the 
scot and lot borough, and in those of burgage-tenure. If the 
franchise, as we now denominate it, passed in the thirteenth 
century for a burden, subjecting the elector to bear his part 
in the payment of wages to the representative, the above 
conjV'cture will be equally applicable, by changing the words 
liglit and claim into liability.^ 

It was according to the natural course of things that the 
mayors or bailiffs, as returning officers, with some of tho 
principal burgesses (especially where incorporating charters 
had given them a preeminence), would take to themselves 
the advantage of serving a courtier or neighboring gentleman, 
by returning him to parliament, and virtually exclude the 
general class of electors, indifferent to public matters, and 
without a suspicion that their individual suffrages could ever 
be worth purchase. It is certain that a seat in the commons 
was an object of ambition in the time of Edward IV., and I 
have little doubt that it was so in many instances much soon- 
i!r. But there existed not the means of that splendid cor- 
.'•uption which has emulated the Crassi and Luculli of Rome. 
Sven so late as 1.571, Thomas Long, a member for Westbury, 
confessed that he had given four pounds to the mayor and 
another person for his return. The elections were thus gen- 
erally managed, not often perhaps by absolute bribery, but 
through the influence of the government and of the neigh 

1 The poptilar character of the elective Join. Who then elected the members of 
franchise in tarXy times has been main- boroughs not incorporated? Plainly, the 
tained by two writers of consiuerable inliabitinta or burghers [accordiug to 
research and ability; Mr. Luders, Ke- their tenure or situation]; for at that 
ports of Klection Cases, and Mr. Mere- time every inliabitaut of a borough was 
wether, in his Sketch of the History of called a burge.ss ; and Ilohart refers to 
Boroughs and Report of the West Looe this usage in support of his opinion ic 
Case. The former writer has the follow- the ca«e of Dungannon. The manner in 
Ing observations, vol. i. p. 99: — "The which they exercised this right was the 
ancient history of boroughs does not con- game as that in which the inhabitiints of 
firm the opinion above referred to, which a town, at this day, hold a right of corn- 
lord chief justice Holt delifered in the mon, or other such privilege, which many 
case of Ashby v. White : viz. that in- possess who are not incorporated." The 
habitants not incorporated cannot send words in brackets, which are not in the 
members to parliament but by prescrip- printed edition, are inserted by the author 
lion. For there is good reason to believe himself in » copy beijueJithed to the In- 
that the elections in boroughs were in the ner Temple library. The remainder of 
beginning of representation popular; yet Mr. Luders'" note, though too long for 
In the reign of Edward I. there were not this place, is very good, and successful!} 
perhaps thirty corporations in the king- repels the corporate theorv. 



262 



ELECTOKAL FRANCHISE NARROWED Chap. Xlfl 



boring aristocracy ; and while the freemen of the corpora- 
tion, or resident liouseholJers, were frequently peniiitted, for 
the sake of form, to concur in the election, there were many 
places where the smaller part of the municipal body, by 
whatever names distinguished, acquired a sort of prescriptive 
right through an usage, of which it was too late to show the 
commencement.* 

It was perceived, however, by the assertors of the popular 
cause under James I., that, by this narrowing of the elec- 
toral franchise, many borouglis were subjected to the influ- 
ence of the privy council, which, by restoring the household- 
ers to their legitimate rights, would strengthen the interests 
of the counti'y. Hence lord Coke lays it down in his Fourth 
Institute, that, " if the king newly incorporate an ancient 
borough which before sent burgesses to parliament, and 
granteth that certain selected burgesses shall make election 
of the burgesses of parliament, where all the burgesses elect- 
ed before, this charter taketh not away the election of the 
other burgesses. And so, if a city or borough hath power 
to make ordinances, they cannot make an ordinance that a 
less number shall elect burgesses for the parliament than 



1 The followinpr passage from Vowell's 
treatise on tlie order of the parliament, 
publishi'cl in 1571, and reprinted in IIol- 
Ungshi'd's Chronicles of Ireland (vi.Sla), 
seems to indicate that, at least in practice, 
the election was in the principal or gov- 
erning body of the corporation. " The 
sherilf of every county, having received 
his writ, ought forthwith to send his pre- 
cepts and summons to the mayors, bailiffs, 
and head officers of every city, town cor- 
porate, borough, and such places as have 
been accustomed to send burgesses within 
his county, that they do clioose and elect 
among themselves two citizens for every 
city, anil two burgesses for every borough, 
according to their old custom and usage. 
And these head oflicers ought then to as- 
semble themselves, aii'l Ike aldermen and 
common cintnril. of e eery city or town: 
and to make choice among themselves of 
two able and suflicient men of every city 
or town, to serve for and in the said par- 
liament." 

Now, if these expressions are accurate, 
it certainly seems that at this period the 
great body of freemen or inhabitants were 
not partiikers in the exercise of their 
franchise. And the following passage, if 
the reader will turn to it, wherein Voivell 
adverts to the form of a county election, 
is so differently worded in respect to the 



election by the freeholders at large, that 
we may fiirly put a literal construction 
upon tlie former. In point of fact, 1 hare 
little dnubt that elections in boroughs 
were for the most part very closely man- 
aged in the sixteenth century, and prob- 
ably much earlier. This, however, will 
not by any means decide the question of 
right. For we know that in the reigna 
of Henry IV. and Ilenry V. returns for 
the great comity of York were made by 
the proxies of a few peers and a few 
knights ; and there is a stjd more ano- 
malous case in the reign of Elizabeth, 
when a lady Packington sealed the in- 
denture for the county of Worcester. 
Carew's Hist, of Elections, part ii. p. 282. 
But no one would pretend that the right 
of election was iu the.se persons, or sup- 
posed liy any human being to be so. 

The difficulty to be got over by those 
who defeud the modern decisions of com- 
mittees is this. We know that in the 
reign of Edward I. more than one hun- 
dred boroughs made returns to the writ. 
If most of these were not incorporated, 
nor had any aldermen, capital burgesses, 
and so forth, by whom were the elections 
made ? Surely by the freeholders, or by 
the inhabitants. And if they were so 
made in the reign of EJward I., how has 
the franchise been restrained afterwards? 



CiiA. ir.— Constitution. BY MUNICIPAL BODIES. 263 

made the election before ; for free elections of members of 
the high court of parliament are pro bono publico, and not 
to be compared to other cases of election of mayors, bailiffs, 
&c., of corporations." ^ He adds, however, " by original 
grant or by custom, a selected number of burgesses may 
elect and bind the residue." This restriction was admitted 
by the committee over wliich Glanville presided in 1024.^ 
But both they and lord Coke believed the representation of 
boroughs to be from a date before what is called legal mem- 
ory, that is, the accession of Richard I. It is not easy to 
reconcile their principle, that an elective right once subsist- 
ing could not be limited by anything short of immemorial 
prescription, with some of their own determinations, and still 
less with those which have subsequently occurred, in favor 
of a restrained right of suffrage. There seems, on the 
whole, great reason to be of opinion that, where a borough 
is so ancient as to have sent members to parliament before 
any charter of incorporation proved or reasonably presumed 
to have been granted, or where the word burgensis is used 
without anything to restrain its meaning in an ancient char- 
ter, the right of election ought to have been acknowledged 
either in the resident householders paying general and local 
taxes, or in such of them as possessed an estate of freehold 
within the borough. And whatever may have been the 
primary meaning of the word burgess, it appears consonant 
to the popular spirit of the English constitution that, after 
the possessors of leasehold interest became so numerous and 
opulent as to bear a very large share in the public burdens, 
they should have enjoyed commensurate privileges ; and that 
the resolution of Mr. Glanville's committee in favor of what 
they called the common-law right should have been far more 
uniformly received, and more consistently acted upon, not 
merely as agreeable to modern theories of liberty, from 
which some have intimated it to have sprung, but as ground- 
ed on the primitive spirit and intention of the law of par- 
liament. 

In the reign of Charles II. the house of commons seems 
to have become less favorable to this species of franchise 

1 4 Inst. 48. GlanTille, p. 53, 66. That election, Is laid down in the game book 
no private agreement or by-law of the p. 17. 
borough can restrain the right of 2 GlanTille's case of Bletchingly, p. 88 

VOL. II. — c. 18 



204 CONTRARY DECISIONS ON THE Chap. XilL 

But after the Revolution, when the struggle of parties was 
renewed every three years throughout the kingdom, the 
right of election came more continually into question, and 
was treated with the grossest partiality by the house, as 
subordinate to the main interests of the rival factions. Con- 
trary determinations for the sole purpose of serving these 
interests, as each grew in its turn juore powerful, frequently 
occurred ; and at this time the ancient right of resident 
householders seems to have grown into disrepute, and given 
way to that of corporations, sometimes at large, sometimes 
only in a limited and very small number.* A slight check 
was imposed on this scandalous and systematic injustice by 
the act 2 G. II., c. 2, which renders the last determina- 
tion of the house of commons conclusive as to the right of 
election.^ But this enactment confirmed many decisions that 
cannot be reconciled with any sensible rule. The same in- 
iquity continued to prevail in cases beyond its pale ; the fall 
of sir Robert Walpole from power was reckoned to be set- 
tled when there appeared a small majority against him on 
the right of election at Chippenham, a question not very log- 
ically connected with the merits of his administration ; and 
the house would to this day have gone on trampling on the 
franchises of their constituents, if a statute had not been 
passed through the authority and eloquence of Mr. Gren- 
ville, which has justly been known by his name. I shall not 
enumerate the particular provisions of this, excellent law, 
which, in point of time, does not fall within the period of 
my present work; it is generally acknowledged that, by 



1 [I incline to suspect that it would be to haye supported it, as far as we can 

found on research that, in a plurality of judge by the tellers. Id. March 30. — 

Instances, the tories faTored the right of 1845.] 

residents, either householders or burgage 2 This clause, in an act imposing severe 

tenants, to the exclusion of freemen, who, penalties on bribery, was inserted by the 

btiug in a great measure out-voters, house of lords with the insidious design 

Were less likely to be influenced by the of causing ihe rejection of the whole bill; 

noighboring gentry. In 1694 a bill was if the commons, as might be expected, 

Brought in to disfranchise the borough should resent such au interference with 

of Stockbridge for bribery. But the bur- their privileges. The ministry accord- 

gesses petitioned against it, declaring ingly endeavored to excite this sentiment; 

themselves resolved for the future, in all but those who had introduced the bill 

difficult cases, to consult the gentlemen very wisely thought it better to sacrifice 

of the county. Journals, 7th Feb. They a point of dignity rather than lose so im- 

by no means kept their word in the next portant a statute. It was, however, only 

century ; no place having been more no- carried by two voices to agree with the 

toriously venal. The bill was thrown out amendment. Pari. Uist. viii. 764. 
by a small majority ; but the whigs seem 



Cha. II. — ConstitatJm. RIGHT OF ELECTION. 265 

transferring the judicature, in all cases of controverted elec- 
tions, from the house to a sworn committee of fifteen mem- 
bers, the reproach of partiality has been a good deal light- 
ened, though not perhaps effaced.^ 

1 These pages Tvere first published in cient rights of election in borouglia a 
1827. The Reform Bill of 1832 has of matter of merely historical interest. 
«nurse rendered a disquisition on the an- 



266 REGARD FOR ANCIENT FORMS. Ciiap XrV 



CHAPTER XIV. 

THE REIGN OP JAMES II. 

Designs of the King — Parliament of 1685 — King's Intention to repeal the Tort 
Act — Deceiyed as to the Dispositions of his subjects — Prorogation of Parlia- 
ment — Dispensing Power confirmed by the Judges — Ecclesiastical Commission — 
King's Scheme ol estabUshing Popery — Dismissal of Lord Rochester — Prince of 
Orange alarmed — Plan of setting the Princess aside — Rejected by the King — 
Overtures of the Malecontents to Prince of Orange — Declaration for Liberty of 
Conscience — Addresses in favor of it — New Modelling of the Corporations — Af- 
fair of Magdalen College — Infatuation of the King — Ills Coldness towards Louis — 
Invitation signed to the Prince of Orange — Birth of Prince of \Vales — Justice 
and Necessity of the Revolution — Favorable Circumstances attending it — Its 
Salutary Consequences — Proceedings of the Convention — Ended by the Elevation 
of WiUiam and Mary to the Ilirone. 

The great question that has been brought forward at the 
end of the last chapter, concerning the right and usage of 
election in boroughs, was perhaps of less practical impor- 
tance in the reign of Charles II. than we might at first 
imagine, or than it might become in the present age. Who- 
ever might be the legal electors, it is undoubted that a great 
preponderance was virtually lodged in the select body of cor- 
porations. It was the knowledge of this that produced the 
corporation act soon after the Restoration, to exclude the 
presbyterians, and the more violent measures of quo war- 
ranto at the end of Charles's reign. If by placing creatures 
of the court in municipal offices, or by intimidating the for- 
mer corporators through apprehensions of forfeiting their 
common property and lucrative privileges, what was called 
a loyal parliament could be procured, the business of gov- 
ernment, both as to supply and enactment or repeal of laws^ 
would be carried on far more smoothly and with less scandal 
than by their entire disuse. Few of those who assumed the 
name of tories were prepared to sacrifice the ancient funda- 
mental forms of the constitution. They thought it equally 
necessary that a parliament should exist, and that it should 
have no will of its own, or none, at least, except for the pres- 
ervation of that ascendency of the established religion which 
even their loyalty would not consent to surrender. 



James II. 



DESIGNS OF THE KING. 



267 



It is not easy to determine whether James II. had resolved 
to complete his schemes of arbitrai'y government Designs ox 
by setting aside even the nominal concurrence of ^^'^ ''^"S- 
the two houses of parliament in legislative enactments, and 
especially in levying money on his subjects. Lord Halifax 
had given him much offence towards the close of the late 
reign, and was considered from thenceforth as a man unfit to 
be employed, because in the cabinet, on a question whether 
the people of New England should be ruled in future by an 
assembly or by the absolute pleasure of the crown, he had 
spoken very freely against unlimited monarchy.^ James, 
indeed, could hardly avoid perceiving that the constant ac- 
quiescence of an English house of commons in the measures 
proposed to it, a I'espectful abstinence from all intermeddling 
with the administration of affairs, could never be relied upon 
or obtained at all, without much of that dexterous manage- 
ment and influence which he thought it both unworthy and 
impolitic to exert. It seems clearly that he had determined 
on trying their obedience merely as an experiment, and by 
no means to put his authority in any manner within their 
control. Hence he took the bold step of issuing a proclama- 
';ion for the payment of customs, w^hich by law expired at 
'iie late king's death ; " and Barillon mentions several times 
hat he was resolved to continue in the possession of the 



1 Fox, Appendix, p. 8. 

2 " The legal method." says Burnet, 
" was to have made entries, and to have 
taken bonds for those duties to be paid 
when the j)arUament should meet and 
renew the grant." Mr. Ouslow remarks 
on this, that he should have said, the 
least iUegal and the only justifiable 
method. To which the Oxford editor 
Bubjoins that it was the proposal of lord- 
keeper North, while the other, which was 
adopted, was suggested by JefTeries. This 
is a mistake. North's proposal was to 
collect the duties under the proclamation, 
but to keep them apart from the other 
revenues in the exclie<iuer until the next 
Bession of parliament. There was surely 
little difference in point of illegality be- 
tween this and the course adopted. It 
was alleged that the merchants, who had 
paid duty, would he injured by a tem- 
porary importation duty free ; and cer- 
tainly it was inconvenient to make the 
rerenue dependent on such a contingency 
as the demise of the crown. l$ut this 
neither justifies the procliuuation nor the 



disgraceful acquiescence of the next par- 
liament in it. 

The king was thanked in several ad- 
dresses for directing ^he customs to be 
levied, particularly in one from the 
benchers and barristers of the Middle 
Temple. London Gazette, March 11. 
This was drawn by sir Bartholomew 
Shower, and presented by sir Humphrey 
Mackworth. Life of James, vol. ii. p. 17. 
The former was active as a lawyer in ali 
the worst measures of these two reigns. 
Yet, after the Revolution, they both be- 
came tory patriots and jealous assertors 
of freedom against the government of 
William III. Bririllon, however, takes 
notice that this illegal continuance of 
the revenue produced much discontent. 
Fox's Appendix, 39. And Rochester told 
him that Nortli and Halifax would have 
urged the king to call a parliament, in 
order to settle the revenue on a lawful 
basis, if that •esolutiou had not been 
taken by himself. Id. p. 20. The king 
thought it neees.sary to apologize to Ba 
rilJon for convoking parliament. Id. p 
Id. Dalrymple, p. 100. 



268 PARLIAMENT OF 1685. Chap. XIV 

revenue, whether the parliament should grant it or no. He 
was ecjiially decided not to accept it for a limited time. This, 
as his principal ministers -told the ambassador, would be to 
establish the necessity of convoking parliament from time to 
time, and thus to change the form of government by render- 
ing the king dependent upon it ; rather than which it would 
be better to come at once to the extremity of a dissolution, 
and maintain the possession of the late king's revenues by 
open force. ^ But the extraordinary conduct of this house of 
commons, so unlike any that had met in England for the 
last century, rendered any exertion of violence on this score 
quite unnecessary. 

The behavior of that unhonored parliament which held its 
Parliament two short sessions in 1685, though in a great 
of 1685. measure owing to the fickleness of the public 
mind and rapid ascendency of tory principles during the late 
years, as well as to a knowledge of the king's severe and 
vindictive temper, seems to confirm the assertion strongly 
made at the time within its walls, that many of the members 
had been unduly returned.^ The notorious facts, indeed, as 
to the forfeiture of corporations throughout the kingdom, and 
their regrant under such restrictions as might serve the 
purpose of the crown, stand in need of no confirmation. 
Those who look at the debates and votes of this assembly, 
their large grant of a permanent revenue to the annual 
amount of two millions, rendering a frugal prince, in time of 
peace, entirely out of all dependence on his people ; their 
timid departure from a resolution taken to address the king 
on the only matter for which they were really solicitous, the 
enforcement of the penal laws, on a suggestion of his dis- 
pleasure;® their bill entitled For the pi-eservation of hi? 

1 Dalrymple, p. 142. The king alludes etre cntendu par le terme de religion 
to this possibility of a limited graut with protestante. La resolution fut prise una- 
much resentment and threatening, in his nimement, et sans contradiction, de faire 
speech on opening the session. une adresse an roy pour le prier de faira 

2 Fox, Appendix, p. 93; Lonsdale, p. une proclamation pour Texecution dea 
5; Ralph, 860; Evelyn, i. 501. loix centre tons les non-conformistes 

3 For this curious piece of parliamen- gen^ralement, c'est-i-dire, centre tous 
tary inconsistency, see Reresby's Me- ceux qui ne sont pas ouvertement do 
moirs, p. 113; and Barillon, in the Ap- I'eglise Anglicane ; cela enferme les pres- 
pendix to Fox, p. 95. " II s'est passe byteriens et tous les sectaires. aussi bien 
avant hier une chose de grande conse- que les catholiques Romains. ^ La malice 
quence dans la chambre basse : il fut de cette resolution fut aussitot reconnu 
propose le matin que la chambre se met- du roy d'Angleterre, et de ses miuistres ; 
toit en comite I'apres diner pour con- les principaux de la chambre basse furent 
eiderer la harangue du roy sur I'affaire mandes, et ceux que sa majeste Britan- 
de la religion, et savoir "ce qui devoit nique croit etre dans ses interets ; il leur 



JAMES ir. PAELTAMENT OF 1085. 2G0 

majesty's person, full of dangerous innovations in the law of 
treason, especially one most unconstitutional clause, that any 
one moving in either house of parliament to change the 
descent of the crown should incur the penalties of that 
offence;^ their supply of 700,000/., after the suppression of 
Monmouth's rebellion, for the support of a standing army;' 
will be inclined to believe that, had James been as zealous 
for the church of England as his father, he would have suc- 
ceeded in establishing a power so nearly despotic, that 
neither the privileges of parliament, nor much less those of 
private men, would have stood in his way. The prejudice 
which the two last Stuarts had acquired in favor of the Ro- 
man religion, so often deplored by thoughtless or insidious 
writers as one of the worst consequences of their father's ill 
fortune, is to be accounted rather among the most signal links 
in the chain of causes through which a gracious Providence 
has favored the consolidation of our liberties and welfare 
Nothing less than a motive more universally operating than 
the interests of civil freedom would have stayed the compli- 
ant spirit of this unworthy parliament, or rallied, for a time 
at least, the supporters of indefinite .prerogative under a ban- 
ner they abhorred. We know that the king's 
intention was to obtain the repeal of the habeas tion°to repeaj 
corpus act, a law which he reckoned as destructive the habeas 

r. f> 1 ITT corpus act. 

of monarchy as the test was or the catholic relig- 
ion.^ And I see no reason to suppose that he would have 

9t nne reprimande sfevire de s'etre laiss^s house of commons, shall move or propose 

seduire et entrainer 4 une resolution si in either house of parliament the disheri- 

dangereuse et si peu admissible. II leur son of the rightful and true heir of the 

declara que, si Ton persistoit i lui faire crown, or to alter or change the descent 

une pareille adre-sse, il repondroit k la or succession of the crown in the right 

ohambre basse en termes si decisife et si line, such offence shall be deemed and 

fennes qu'on ne retourneroit pas X lui adjudged high-treason, and every person 

fairo une pareille adresse. La maniere being indicted and convicted of such 

dont sa mnjeste Britannique s'explique treason sliall be proceeded against, and 

])roduisit son effet hier matin ; et la shall suffer and forfeit as in other cases 

o.hambre basse rejeta toute d'une voix ce of high-treason mentioned in this act." 

qui avoit ete resolu en comite le jour See what lord Lonsdale says, p. 8 of 

Buparavant." this bill, which he, among others, con- 

The only man who behaved with dis- trived to weaken by provisos, so that it 

tinguished spirit in this wretched parlia- was given up. 

ment-was one in whose political life there 2 Pari. Hist. 1372. The king's speech 

is little else to praise, sir Edward Sey- had evidently shown that the supply was 

mour. lie opposed the grant of the rev- only demanded • for this purpose. The 

enues for life, and spoke strongly against speaker, on presenting the bill for settling 

the illeg.'vl practices in the elections. Fox, the revenue in the former session, claimed 

90, 93. it as a merit that they had not inserted 

1 Fox, Appendix, p. 156. " Provided any appropriating clauses. Pari. Hist. 

always, and be it further enacted, that if 13^9. 

any peer of this realm, or member of the 3 Keresby, p. 110. Barillon, in Fox's 



270 PROJECTED OVERTHROW OF Chap. XIV 

failed of this, had he not given alarm to his high-church par- 
liament by a premature manifestation of his design to fill the 
civil and military employments with the professors of his 
own mode of faith. 

It has been doubted by Mr. Fox whether James had, in 
this part of his reign, conceived the projects commonly im- 
puted to him, of overthrowing, or injuring by any direct 
acts of power, the protestant establishment of this kingdom 
Neither the copious extracts from Barillon's correspondence 
with his own court, published by sir John Dalrymple and 
himself, nor the king's own memoirs, seem, in his opinion, to 
warrant a conclusion that anything farther was intended than 
to emancipate the Roman catholics from the severe restric- 
tions of the penal laws, securing the public exercise of their 
worship from molestation, and to replace them upon an 
equality as to civil offices by abrogating the test act of the 
late reign. -^ We find nevertheless a remarkable conversation 
of the king himself with the French ambassador, which 
leaves an impression on the mind that his projects were 
already irreconcilable with that pledge of support he had 
rather unadvisedly given to the Anglican church at his 
accession. This interpretation of his language is confirmed 
by the expressions used at the same time by Sunderland, 
which are more unequivocal, and point at the complete estab- 
lishment of the catholic religion.^ The particular care dis- 

Appendix, p. 93, 127, &c. " Le feu roi overthrowing the Anglican establish- 

d'Angleterre et celui-ci m'ont souvent ment. 

dit, fju'UQ gouvernement. ne peut sub- " " II [le roy] me repondit i ce que 

Bister avec uue telle loi."' Dalrymple, je venois de dire, que je connoissois le 

p. 171. fond de ses intentions pour I'etablisse- 

1 This opinion has been well supported ment de la religion catholique ; qu'il 

by Mr. Sergeant Heywood (Vindication n'esperoit en veuir i bout que par I'assis- 

of Mr. Fox"s History, p. 154). In some tance de V. M. ; que je TOyois qu'il venoit 

few of Larillon's letters to the king of de donner dcs eniplois dans ses troupes 

France he speaks of James's intention aux oatholiques aussi bien qu'aux pro- 

etablir la religion catholique ; but these testans ; que cette egalite ITtchoit beau- 

perhaps might be explained by a far coup de gens, mais qu'il n"avoit pas laissa 

greater number of passages, where he passer une occasion si importantc sans 

says only etablir le libre exercice de la s'en prevaloir ; qu'il feroit de meme i 

religion catholique, and by the general I'egard des choses praticables ; et que je 

tenor of his correspondence. But though voyois plus clair sur cela dans ses des- 

the primary object was toleration, I have seinsque ses propres ministres, s'en etant 

no doubt but that they conceived this souvent ouvert avec moi sans reserve." 

was to end in establishment. See what P. 104. In a second conversation imme- 

Barillon says, p. 84 ; though the legal diately afterwards the king repeated, 

reasoning is fUse, as might be expected " que je connoissois le fond de ses dos- 

from a foreigner. It must at all events seins, et que je pouvois repondre que 

be admitted that the conduct of the king, tout son but etoit d'etablir la religion 

after the formation of the catholic junto cathohque ; qu'il ne perdroit aucuue oc- 

In 1686, demonstrates an intention of casion de la faire . . . que pen k peu il 



jAJIES II. 



THE ANGLICAN ESTABLISHMENT. 



271 



played by James in this conversation, and indeed in so many 
notonous instances, to place the army, a? far as possible, in 
the command of catholic officers, has very much the appear- 
ance of his looking towards the employment of force in 
overthrowing the protestant church, as well as the civil 
privileges of his subjects. Yet he probably entertained con- 
fident hopes, in the outset of his reign, that he might not be 
driven to this necessity, or at least should only have occasion 
to restrain a fanatical populace. He would rely on the 
intrinsic excellence of his own religion, and still more on the 
temptations that his favor Avould hold out. For the repeal 
of the test would not have placed the two religious on a fair 
level. Catholics, however little qualified, would have filled, 
as in fact they did under the dispensing power, most of the 
principal stations in the court, law, and army. The king 
told Barillon he was well enough acquainted with England 
to be assured that the admissibility to office would make 
more catholics than the right of saying mass publicly. 



va i son but; et que ce qu'il fait pr6- 
seutemenfc emporte nccessairemeut I'ex- 
•ircice libre do la religion catholique, qui 
»e trouveri etiibli avant qu'un acte de 
parlemeat rautorise ; que ju coanoissoi.-i 
assez l'Aii!»letuiTe pour savoir que la pos- 
sibilite d'avoir des emplois et des charges 
fera plus de catholiques que la perniis- 
Biou de dire des messes publiques; que 
cependaut il s"attendoit que V. M. ne 
I'abandouneroit pas,'" &c. P. 106. Sun- 
derland entered on the same subject, 
saying, ''Je ne sais pas si Ton voit en 
France les choses comme elles sont ici : 
mais je defie ceux qui les voyent de pres 
de ne pas connoitre que le roy mon 
maitre n'a rien dans le oceur si avant que 
I'eavie d'etablir la religion catholique ; 
qu'il ne peut meme. selon le boa sens et 
la droite raison, avoir d'autre but; que 
Bans cela il ne sera jamais en surcte, et 
sera toujours expose au zele indiscret de 
ceux qui echauflerout les peuples centre 
U catholicitij, tint qu'elle no sera pas 
plus pleinemeut etablie. II y a un autre 
chose ccrtiiiai!. c'est quo co plan li no 
peut r6ussir que par un concert et une 
liaison etroite avec le roi votre maitre ; 
c'est un projet qui ne peut convenir qu'i 
lui, nl reussir que par lui. Toutes les 
autres pui.-sances s'y opposcront ouvcrte- 
meut, ou le traverseront sous main. On 
salt bien que cela ne convient point au 
prince d'Orange ; mais il ne sera p:us en 
etat de I'empicher si on veut se conduiro 
en France comme il est n6cessaire, cVst- 
^-dire mena^-r I'amitie du roy d'Angle- 



terre, et le contenir dans son projet. Jp 
vols clairemect I'apprehcnsion que beau- 
coup de gens out d'une liaison avec la 
France, et les efforts qu'on f.tit pour 
I'affoiblir; mais cela ne sera au pouvoir 
de personne. si on n'en a pas envie de 
France; c"est sur quoi il faut que vou3 
vous expliquiez nettement, que voua 
fassiez connoitre que le roi votre maitro 
veut aider de bonne foi le roi d'Angleterre 
i etablir fermement la religion catho- 
lique." 

The word plus in the above passage is 
not in Dalrymplc's extract from this let- 
ter, vol. ii. part ii. p. 174, 187. Yet for 
omitting this word sergeant Ileywood 
(not having attended to Dalrymple) cen- 
sures Mr. Kose as if it had been done 
purposely. Vindic. of Fox, p. 154. But 
this is not quite judicious or equitable, 
since another critic might suggest that it 
w.as purposely interpolated. No one of 
common candor would suspect this of 
Mr. Fox; but his copyist, 1 presume, 
was not infallible. The word plus is 
evidently incorrect. The catholic reli- 
gion was not established at all in any 
positive sense; what room could there be 
for the comparative? M. Mazure, who 
has more lately perused the letters of 
Barillon at Paris, prints the passage 
without plus. Hist, de la Revol. ii. 36. 
Cert,ainly the whole conversation her* 
ascribed to Sunderland points at some. 
thing far beyond the free exercise of tbt 
Roman catholic religion. 



272 PROJECTS OF THE KING. Chap. XIV 

There was, on the one hand, a prevailing laxity of princi« 
pie in the higher ranks, and a corrupt devotedness to power 
for the sake of the emoluments it could dispense, which en- 
couraged the expectation of such a nominal change in relig- 
ion as liad happened in the sixteenth century. And, on the 
other, much was hoped by the king from the church itself. 
He had separated from her communion in consequence 
of the arguments which her own divines had furnished ; 
he had conversed with men bred in the school of Laud; 
and was slow to believe that the conclusions which he had, 
not perhaps unreasonably, derived from the semi-protestant 
theology of his father's reign, would not appear equally 
irresistible to all minds when free from the danger and 
obloquy that had attended them. Thus, by a voluntary 
return of the clergy and nation to the bosom of the catholic 
church, he might both obtain an immortal renown, and secure 
his prerogative against that religious jealousy which had 
always been the aliment of political factions.-^ Till this rev- 
olution, however, could be brought about, he determined to 
court the church of England, whose boast of exclusive and 
unlimited loyalty could hardly be supposed entirely hollow, 
in order to obtain the repeal of the penal laws and disquali- 
fications which affected that of Eome. And though the 
maxims of religious toleration had been always in his mouth, 
he did not hesitate to propitiate her with the most acceptable 
sacrifice, the persecution of non-conforming ministers. He 
looked upon the dissenters as men of republican principles ; 
and if he could have made his bargain for the free exercise 
of the catholic worship, I see no reason to doubt that he 
would never have announced his general indulgence to ten- 
der consciences.'^ 

1 It is curious to remark that both ation, or the national establishment, of 

James and Louis considered the reestab- the church of Rome. Mr. Fox's remark 

lishment of the catholic religion and of miist, at all events, be limited to the year 

the royal authority as closely connected, 1685. 

and parts of one great system. Barillon 2 Yox. Appendix, p. 33. Ralph, 869. 

in Fox, Append. 19, 57. Mazure. i. 846. The prosecution of Baxter, for what waa 

Mr. Fox maintains (Hist. p. 102) that called reflecting on the bishops, is an in- 

the great object of the former was abso- stance of this. State Trials, ii. 494. 

nte power rather than the interests of Notwithstanding James's affected zeal for 

{.opery. Doubtless, if James had been toleration, he did not scruple to congrat- 

a protestant, his encroachments on the ulate Louis on the success of his very 

rights of his subjects would not have different mode of converting heretics, 

been less than they were, though not Yet I rather beUeve him to have been 

exactly of the same nature ; but the really averse to persecution , though with 

main object of his reign can hardly be true Stuart insincerity he chose to flattei 

denied to have been either the fuU toler- his patron. Dalrymple, p. 177. A book 



James n. NATIONAL HATRED OF ROMANISM. 273 

But James had taken too narrow a view of the mighty 
people whom he governed. The laity of every 
class, the tory gentleman almost equally with the ■^''P^? "*«- 

/ . •' °, . , ^ . *' ceiveJ as to 

presbyterian artisan, entertained an inveterate ab- thedisposi- 
horrence of the Romish superstition. Their first *ij°^'J/3"* 
education, the usual tenor of preaching, far more 
polemical than at present, the books most current, the tradi- 
tion of ancient cruelties and conspiracies, rendered this a 
cardinal point of religion even with those who had little 
beside. Many still gave credit to the popish plot ; and with 
those who had been compelled to admit its general falsehood, 
there remained, as is frequently the case, an indefinite sense 
of dislike and suspicion, like the swell of waves after a 
storm, which attached itself to all the objects of that calum- 
ny.^ This was of course enhanced by the insolent and 
injudicious confidence of the Romisli faction, especially the 
priests, in their demeanor, their language, and their publi- 
cations. Meanwhile a considerable change had been wrought 
in the doctrinal system of the Anglican church since the 
Restoration. The men most conspicuous in the reign of 
Charles II. for their writings, and for their argumentative 
eloquence in the pulpit, were of the class who had been 

by Claude, published in Holland, entitled pounds, which, relatively to the opulence 

" Plaintes des Protestans cruellement of the kingdom, almost equals any mu- 

opprimes dans le rojaume de France," nificence of this age. Id. p. 123. 

was ordered to be burnt by the hangman ' It is well known that the house of 

cm the complaint of the French ambassa- commons in 1685 would not pass the bill 

dor, and the translator and printer to be for reversing Lord Stafford's attainder, 

inquired after and prosecuted. Loud, against which a few peers had entered a 

Gazette, May 8, 1686. Jcfferies objected to very spirited protest. Pari. Hist. 1361. 

this in council as unusual ; but the king Barillon says, this was " parce que dana 

was determined to gratify his most Chri.s- le preambule il y a des mots inseres qui 

tian brother. Mazuro, ii. 122. It is said semblent favoriser la religion catholique ; 

ftlso that one of the reasons for the dis- cela seul a retarde la rehabilitation du 

grace of lord Halifax wa.s his speaking comte de Stafford, dont tons sont d'accord 

warmly about the revocation of the edict 4 I'egard du fond." Fox, App. p. 110. 

of Nantes. Id. p. 5.5. Yet .James some- But there was another reason which 

times blamed this himself, so as to dis- might have weight. Stafford had been 

please Louis. Id. p. 56. In fact, it very convicted on the evidence, not only of 

much tended to obstruct hLs own views Gates, who had been lately found guilty 

for the establishment of a religion which of perjury, but of several other witnesses, 

had just shown itself in so odious a form, especially Dugdale and Turberville. And 

For this reason, though a brief was read these men had been brought forward by 

in churches for the sufferers, speci.al di- the government against Lord Shaftesbnry 

rections were given that there .should be and College, the latter of whom had been 

no sermon. It is even said that he took hanged on their testimony. The re- 

on himself the distribution of the money versal of Lord Stafford's attainder, just 

collected for the refugees, iu order to stop as we now think it, would have been a 

the subscription, or, at least, that liis in- disgi-ace to these crown prosecutions ; 

terference had that effect. The enthiQsi- and a conscientious tory would be loatk 

asm for the French protestants was such to vote for it. 
that single persona subscribed 500 or 1000 



274 POPULARITY 01 THE KING. Chap. XIV 

denominated Latitudinarian divines ; and, while thej main- 
tained tiie principles of the Remonstrants in opposition to 
the school of Calvni, were powerful and unequivocal sup- 
porters of the protestant cause against Rome. They made 
none of the dangerous concessions which had shaken the 
faith of tlie duke and duchess of York ; they regretted the 
disuse of no superstitious ceremony; they denied not the one 
essential charactei'istic of the Reformation, the right of pri- 
vate judgment ; they avoided the mysterious jargon of a real 
presence in the Lord's Supper. Thus such an agreement 
between the two churches as had been projected at different 
times was become far more evidently impracticable, and the 
separation more broad and defined.^ These men, as well as 
others who do not properly belong to the same class, were 
now distinguished by their courageous and able defences of 
the Reformation. The victory, in the judgment of the na- 
tion, was wholly theirs. Rome had indeed her proselytes, 
but such as it would have been more honorable to have 
wanted. The people heard sometimes with indignation, or 
rather with contempt, that an unprincipled minister, a tem- 
porizing bishop, or a licentious poet, had gone over to the 
side of a monarch who made conformity with his religion 
the only certain path to his favor. 

The short period of a four years' reign may be divided by 
Prorogatioa Several distinguishing points of time, which make 
of parUa- SO many changes in the posture of government, 
men,. Fi'om the king's accession to the prorogation of 

parliament on November 30, 1685, he had acted apparently 
in concurrence with the same party that had supported him 
in his brother's reign, of which his own seemed the natui'al 
and almost undistinguishable continuation. This partj'', which 
had become incomparably stronger than the opposite, had 
greeted him with such unbounded professions,^ the temper 

1 " In all the disputes relating to that about religion ever since. Those un- 

mystery before the civil wars, the church learned and fanatical notions were never 

of England protestant writers owned the heard of till doctor Stillingfleet's late 

real presence, and only abstracted from invention of them, by which he exposed 

the fnodus or manner of Christ's body himself to the lash, not only of the Ro- 

being present in the eucharist, and man catholics, but to that of many of 

therefore durst not say but it might be the church of England controvertista 

there by transubstantiiition as well as by too." Life of James, ii. 146. 

any other way. ... It was ouly of late 2 See London Gazettes, 1685, passim ; 

years that such principles have crept the most remarkable are inserted by 

into the cl'.urch of England, which, hav- Ralph and Kennet. I am sure the ad- 

ing been blown into the parliament dresses which we have witnessed in thi« 

Viouse, h!\ I raised continual tumults age among a neighboring people are not 



James n. BIPOLITIC CONDUCT OF THE KING. 



275 



of its represt ntatives had been such in the first session of 
parliament, that a prince le>s obstinate tlian James might 
have expected to succeed in attaining an authority which the 
nation seemed to offer. A rebelhon speedily and decisively 
quelled confirms every government ; it seemed to place his 
own beyond hazard. Could he have been induced *o change 
the order of his designs, and accustom the people to a mili- 
tary force, and to a prerogative of dispensing with statutes 
of temporal concern, before he meddled too ostensibly with 
their religion, he would possibly have gained both the objects 
of his desire. Even conversions to popery might have been 
more frequent, if the gross solicitations of the court had not 
made them dishonorable. But, neglecting the hint of a pru- 
dent adviser, that the death of Monmouth left a far more 
dangerous enemy behind, he suffered a victory that might 
have insured him success to inspire an arrogant confidence 
that led on to destruction. Master of an army, and deter- 
mined to keep it on foot, he naturally thought less of a good 
understanding with parliament.^ He had already rejected 



on the whole more fulsome and disgrace- 
ful. Addresses, however, of all descrip- 
tions, as we well kuow, are generally the 
compositioa of some zealous individual, 
whose expressions are not to be taken as 
entirely those of tlie subscribers. Still 
these are sufficient to manifest the gen- 
eral spirit of the times. 

The king's popularity at his accession, 
which all contemporary writers attest, 
la strongly expressed by lord Lonsdale. 
"The great interest he had in his broth- 
er, so that all applications to the king 
Be3med to succeed only as he favored 
them, and the general opinion of him to 
be a prince steady above all others to his 
word, made hiiu at that time the most 
popular prince that had been known in 
England for a long time. And from 
men's attempting to exclude him, they, 
at this juncture of time, made him their 
darling ; no more was his religion terri- 
ble; his magnanimous courage, and the 
hardships he had undergone, were the 
discourse of all men. And some reports 
of amisundor3tandingt.5twixt the French 
king and him, occasioned originally by 
the marriage of the lady Mary to the 
prince of Orange, industriously spread 
abroad to amuse the ignorant, put men 
in hopes of what they had long wished ; 
that, by a conjunction of Holland and 
Spain, &c., we might have been able to 
reduce France to the terms of the Pyre- 
neau t-vatv, which was now becoma fhe 



terror of Christendom, we never having 
had a prince for many ages that had so 
great a reputation for experience and a 
martial spirit." P. 3. This lust sentence 
Is a truly amusing contrast to the real 
truth. 

1 " On voit qu'insensiblement les ca- 
tholiques auront les armes i la main ; 
c'est un etat bien different de Toppres- 
sion oil ils etoient, et dont les protestans 
zeles rt'(:oivent une grande mortification : 
ils voyent bien que le roy d'Angleterre 
fera le reste quand il le pourra. La 
levee des troupes, qui seront bientdt 
completes, fait juger que le roy d'Angle- 
terre veut etre en etat de se faire obeir. 
ct de n'etre pas gene par les loix qui se 
trouverout contraires <l ce qu"il veut 
etablir." Bai-illon, in Fox's Appendix, 
111. ''lime paroit," he says, June 25, 
" que le roy d'Angleterre a ete fort aise 
d'avoir une pretexte de lever des troupes, 
et qu'il croit que I'entreprise de M. le 
due de Monmouth ne servira qu'i le 
rendre plus maitre de son pays." And 
on July 30, •• Le projet du roy d'Angle- 
terre est d'abolir cntierement les milices, 
dont il a reconnu I'inutilite et le danger 
en cotte dernicre occasion ; et de faire, 
s'il est possible, que le parlement etablisse 
le fond destine pour les milices k I'en- 
tretien des troupes reglees. Tout ccla 
change entierement I'etat de ce pays ici, 
et met les Anglois dans une condition 
bien differente de cclle oil ils cat et6 jes 



276 TEOEOGATION OF PARLIAMENT. Chap. XlV 

the proposition of employing bribery among the members, an 
expedient very little congenial to his presumptuous temper 
and notions of government.^ They were assembled, in his 
opinion, to testify the nation's loyalty, and thankfulness to 
their gracious prince for not taking away their laws and lib- 
erties. But, if a factious spirit of opposition should once pre 
^vail, it could not be his fault if he dismissed them till more 
becoming sentiments should again gain ground.^ Hence he 
did not hesitate to prorogue, and eventually to dissolve, the 
most compliant house of commons that had been returned 
since his family had sat on the throne, at the cost of 700,000^., 
a grant of supply which thus fell to the ground, rather than 
endure any opposition on the subject of the test and penal 
laws. Yet, from the strength of the court in all divisions, it 
must seem not improbable to us that he might, by the usual 
means of management, have carried both of those favorite 
measures, at least through the lower house of parliament. 
For the crown lost the most important division only by one 
vote, and had in general a majority. The very address about 
unqualified officers, which gave the king such offence as to 
bring on a prorogation, was worded in the most timid man 
ner ; the house having rejected unanimously the words first 
inserted by their committee, requesting that his majesty 
would be pleased not to continue them in their employ- 
ments, for a vague petition that " he would be graciously 
pleased to give such directions that no apprehensions or jeal- 
ousies may remain in the hearts of his majesty's good and 
faithful subjects." ^ 

ques i. present. lis le connoissent, et 59, 60. Mazure, i. 432. But this was 

voyent bien qu'un roy de differeate re- prevented, partly by the sudden inyasiOD 

ligion que celle du pays, et qui se trouve of Monmouth, which made a new session 

arme, ne renoneera. pas aisement aux necessary, and gave hopes of a large sup 

avantages que lui donne la detaite des re- ply for the army ; and partly by the un- 

belles, et les troupes qu'il a sur pied." willingness of the king of France to 

And afterwards: " Le roi d'Augleterre advance as much money as the Englisb 

m'a dit que, quoiqu'il arrive, il conser- government wanted. In fact, the plan 

vera les troupes sur pied, quand meme of continual prorogations answered as 

le parlement ne lui donneroit pour les well. 

entretenir. II counoit bien que le parle- 3 Journals, Nov. 14. Barillon saya 
ment verra mal volontiers cet etablisse- that the king answered this humble ad- 
ment ; mai« il veut etre assure du dedans dress '• avec des marques de fierto et de 
de son pays ?t 11 croit ne le pouvoir etre colere sur le visage, qui faisoit assez con- 
Bans cela." Dalrymple, 169, 170. noitre ses sentimens." Dalrymple, 172. 

1 Fox's App. 69. Dalrymple, 153. See, too, his letter in Fox, 139. 

2 It had been the intention of Sunder- A motion was made to ask the lords' 
land and tbe others to dissolve parlia- concurrence iu this address, which, ac- 
ment as soon as the revenue for life cording to the Journals, was lost by 212 
should be settled, and to rely in future to 138. In the Life of James, ii. 55, i» 
on the assistance of France. Fox's App. is said that it was carried against tu* 



JAMES n. DISPENSING POWER CONFIRSIED. 277 

The second period of this reign extends from the proroga- 
tion of parhament to the dismissal of the earl of Rochester 
from the treasury in 1G86. During this time James, exas- 
perated at the rel'i^tance of the commons to acquiesce in his 
measures, and the decisive opposition of the church, threw 
off til 6 half restraint he had imposed on himself; and showed 
plainly that, with a bench of judges to pronounce his com- 
mands, and an army to enforce them, he would not suffer the 
mockery of constitutional limitations to stand any longer in 
his way. Two important steps were made this year towards 
the accomplishment of his designs, by the judgment of the 
court of king's bench in the case of sir Edward Hales, con- 
firming the right of the crown to dispense with the test act, 
and by the establishment of the new ecclesiastical com- 
mission. 

The kings of England, if not immemorially, yet from a 
very early era in our recoi'ds, have exercised a 
prerogative unquestioned by parliament, and rec- power'ccm^ 
ognized by courts of justice, that of granting dis- firmed by 
pensations from the prohibitions and penalties of """^ ^'^ ' 
particular laws. The language of ancient statutes was usu- 
ally brief and careless, with few of those attempts to regulate 
prospective contingencies, which, even with our pretended 
modern caution, are so often imperfect ; and, as the sessions 
were never regular, sometimes interrupted for several years, 
there was a kind of necessity, or great convenience, in de- 
viating occasionally from the rigor of a general prohibition ; 
more often perhaps some motive of interest or partiality 
would induce the crown to infringe on the legal rule. This 
dispensing power, however, grew up, as it were, collater- 
ally to the sovereignty of the legislature, which it some- 
times appeared to overshadow. It was, of course, asserted 
in large terms by councillors of state, and too frequently by 
the interpreters of law. Lord Coke, before he had learned 
the bolder tone of his declining years, lays it down, that no 
act of parliament can bind the king from any prerogative 
which is inseparable from his person, so that he may not dis- 

motion by only four voices ; and thU I equal. It is said in this manuscript that 

find confirmed by a manuscript account those who opposed the address opposed 

of tbJ debates (Sloane MS3. 1470), which also the motion for requesting the lords' 

gives tlie numbers 212 to 208. The concurrence in it; but James represents 

journal probably is misprinted, as the it othersvise, as a device of the court m 

court and country parties were very quash the proceeding. 



278 DISPENSING rOWEU CONFIRMED. Chai-. XIV. 

pense with it by a non obstante; such is his sovereign power 
to command any of his subjects to serve him for the public 
weal, which solely and inseparably is annexed to his person, 
and cannot be restrained by any act of parliament. Thus, 
although the statute 23 H. VI. c. 8, provides that all patents 
to hold the office of sheriff for more than one year shall be 
void, and even enacts that the king shall not dispense with 
it, yet it was held by all the judges in the reign of Henry 
VII., that tlie king may grant such a patent for a longer 
term on good grounds, whereof he alone is the judge. So 
also the statutes which restrain the king from granting par- 
dons in case of murder have been held void ; and doubtless 
the constant practice has been to disregard them.^ 

This high and dangerous prerogative nevertheless, was 
(subject to several limitations, which none but the grosser flat- 
terers of monarchy could deny. It was agreed among law- 
yers that the king could not dispense with the common law, 
nor with any statute prohibiting that which was malum in se, 
nor with any right or interest of a private person or corpora- 
tion.'^ The rules, however, were still rather complicated, the 
boundaries indefinite, and therefore varying according to the 
political character of the judges. For many years dispensa- 
tions had been confined to taking away such incapacity as 
either the statutes of a college, or some law of little conse- 
quence, perhaps almost obsolete, might happen to have cre- 
ated. But when a collusive action was brought against sir 
Edward Hales, a Roman catholic, in the name of his servant, 
to recover the penalty of bOQl. imposed by the test act, for 

1 Coke, 12 Rep. 18. precedents for it ; namely, that against 

2 Vauj';hau's lleports. Thomas v. Sor- new buildings, and about leather, when 
rcll, 333. [Lords' Journals, 29th Deo. the word nuisance is used to the pur- 
1666. "The commons introduced the pose; and farther, that they do not rob 
wora 'nuisance' into the Irish bill, in the king of any right he ever had: for 
order to prevent the kiuj's dispensing he never had a power to do hurt to hia 
with it. The lords did argue that it people, nor would exercise it ; and there- 
was an ill precedent, and that which will fore there is no danger in the passing 
ever hereafter bo held as a way of pre- this bill of imposing on his prerogative ; 
venting the king's dispensation with acts, and concluded that they think they ought 
and therefore rather advise to pass the to do this, so as the people may really 
bill without that word, and let it go ac- have the benefit of it when it is passed, 
companied with a petition to the king &c. The lords gave way soon after- 
that he will not dispense -with it, this wards." Pepys's Diary, Jan. 9, 1666-7. 
being a more civil way to the king. Clarendon speaks of this precaution 
They answered well, that this do imply against the dispensing power as deroga- 
that the king should pass their bill, and tory to the king's prerogative, " divest 
yet with design to dispense with it ; ing him of a trust that was inherent in 
which is to suppose the king guilty of him from all antiquity." Life of Olaren 
abusing them. And more, they produce don, p. 380.] 



, AMES II. CASE OF HALES. 279 

acoeptin^ tlie commission of colonel of n rcgimi-nt, without 
the previous qualification of receiving the sacrament in the 
church of Enghmd, tlie whole importance of the alleged jjre- 
rogative became visible, and the fate of the established consti- 
tution seemed to hang upon the decision. The plaintiff's 
advocate, No'-^iey, was known to have received his fee from 
the otlier side, and was thence suspected, perhaps jnfaiily, of 
betraying his own cause;* but the chief-justice Herbert 
showed that no arguments against this prerogative would 
have swayed his determination. Not content with treating 
the question as one of no difficulty, he grounded his decision 
in favor of the defendant upon principles that would extend 
far beyond the immediate case. He laid it down that the 
kings of I^ngland were sovereign princes ; that the laws of 
England were the king's laws ; that it was consequently an 
inseparable prerogative of the crown to dispense with penal 
laws in paiiicular cases, for reasons of which it was the sole 
judge. This he called the ancient remains of the sovereifQ 
power and prerogative of the kings of England, which never 
yet was taken from them, nor could be. There was no law, 
he said, that might not be dispensed with by the supreme 
lawgiver (meaning evidently the king, since the proposition 
would otherwise be impertinent) ; though he made a sort of 
distinction as to those which affected the subject's private 
right. But the general maxims of slavish churchmen and 
lawyers were asserted so broadly, that a future judge would 
find little difficulty in making use of this precedent to justify- 
any stretch of arbitrary power.^ 

It is by no means evident that the decision in this par- 
ticular case of Hales, which had the approbation of eleven 
judges out of twelve, was against law.* The course of 
former precedents seems rather to furnish its justification. 
But the less untenable such a judgment in favor of the 
dispensing power might appear, the more necessity would 
men of refiection perceive of making some great change 
in the relations of the people towards their sovereign. A 
prerogative of setting a>ide the enactments of parliament, 
which in trifling matters, and for the sake of conferring a 

J Burnet and others. This hardly ap- Powell is said to have doubted. The king 

pears by Nnrtliey's ar;;ument. had privately secured this opinion of the 

3 Stiite Trials, xi. 11G5-1280. 2 Show- bench in his" favor before the action WM 

»t"g Reports, 475. brought. Life of James, 11. 78. 

* The dissentient judge was Street, and 
TOL. II.— C. 19 



280 ECCLESIASTICAL COMMSSION. Chap XFV 

benefit on individuals, might be suffered to exist with little 
mischief, became intolerable when exercised in contravention 
of the very principle of those statutes which had been pro- 
vided for the security of fundamental liberties or institutions. 
Thus the test act, the great achievement, as it had been reck- 
oned, of the protectant party, for the sake of which the most 
subservien' of parliaments had just then ventured to lose the 
king's favor, became absolutely nugatory and ineffective, by a 
construction which the law itself did not reject. Nor was it 
easy to provide any sufficient remedy by means of parlia- 
ment ; since it was the doctrine of the judges that the king's 
inseparable and sovereign prerogatives in matters of govern- 
ment could not be taken away or restrained by statute. The 
unadvised assertion in a court of justice of this principle, 
which, though not by any means novel, had never been ad- 
vanced in a business of such universal concern and interest, 
may be said to have sealed the condemnation of the house of 
Stuart. It made the coexistence of an hereditary line, 
claiming a sovereign prerogative paramount to the liberties 
they had vouchsafed to coii.cde, incompatible with the security 
or probable duration of those liberties. This incompatibility 
is the true basis of the Revolution in 1G88. 

But whatever pretext the custom of centuries or the au- 
thority of compliant lawyers might afford for these dispensa- 
tions from the test, no legal defence could be made for the 
Ecclesiastical ccclesiastical commission of 1 686. The high-com- 
commission. mission court of Elizabeth had been altogether tak- 
en away by an act of the long parliament, which went on to pro- 
vide that no new court should be erected with the like power, 
jurisdiction, and authority. Yet the commission issued by 
James II. followed very nearly the words of that which had 
created the original court under Elizabeth, omitting a few 
particulars of little moment.^ It. is not known, I believe, at 
whose suggestion the king adopted this measure. The pre- 
eminence reserved by the commission to Jefferies, whose pres- 
ence was made necessary to all their meetings, and the vio- 
lence with which he acted in all their transactions on record, 
seem to point him out as its great promoter ; though it is true 

1 state Trials, xi. 1132, et seq. The ester and Sunderland, and chief-justice 

members of the commission were the pri- Herbert. Three were to form a quorum, 

mate Bancroft (who never sat), Crew and but the chancellor necessarily to be one 

Sprat, bishops of Durham and llochester, Ralph, 929. The earl of Mulgrave f%f 

the chancellor Jefferies, the earls of Koch- introduced afterwards. 



James II. SCHEME TO ESTABLISH POPKRY. 2S1 

that, at a later period, Jefferies seems to have peiceivetl the 
destructive indiscretion of popish counsellors. It dispUijed 
the king's change of poUcy and entire separation from that 
high-church party to wiioin he was indebted for the throne, 
since the manifest design of the ecclesiastical commission waa 
to bridle the clergy, and silence the voice of protestant zeal. 
The proceedings against the bishop of London, and other in- 
Btances of hostility to the established religion, are well known. 

Elated by success and general submission, exasperated 
by the reluctance and dissatisfaction of those on whom ho 
had relied for an active concurrence with his desires, the 
king seems at least by this time to have formed the scheme 
of subverting, or impairing as far as possible, the 
religious establishment. He told Barillon, allud- scheme of 
ing to the ecclesiastical commission, that God had esfcibUshing 
permitted all the statutes which had been enacted 
against the catholic religion to become the means of its rees- 
tablishment.^ But the most remarkable evidence of this design 
was the collation of Massey, a recent convert, to the deanery 
of Christ Church, with a dispensation from all the statutes 
of uniformity and other ecclesiastical laws, so ample that 
It made a precedent, and such it was doubtless intended to 
be, for bestowing any benefices upon members of the church 
of Rome. This dispensation seems to have been not gener- 
ally known at the time. Burnet has stated the circum- 
stances of Massey's promotion inaccurately ; and no historian, 
I believe, till the publication of the instrument after the mid- 
dle of the last century, was fully aware of the degree in which 
the king had trampled upon the securities of the established 
church in this transaction.^ 

A deeper impression was made by the dismissal of Roch- 
ester from his post of lord-treasurer; so nearly Dismissal 
consequent on his positive declaration of adhe- °^ 'ofd 
rcnce to the protestant religion, after the dispute 

I Mazurc, ii. 130. college, they are obliged. There Is also 

- Usury F^rl of Clarendon's Papers, in the same book a dispensation for on« 

li. 278. In IJutch's Collectanea Curiosa, Solat<.T, curate of Putney and rector of 

vol. i. p 287, we find not only ttii.<4 li- K«her, from using ihe common prayer, 

cense to Massey, but one to Obadiah &c., &c. Id. p. :So. These are in Slay, 

Walker, m.aster of University College, 1680, and subscribed by Powis. the 

and to two fellows of the same, and one solicitor-general. The attorney-general, 

of Brazen-no.se College, to absent them- S iwyer, had refused ; sw we learn from 

selves from church, and not to take the Ki-resby. p. 133. the only contemporary 

oaths of supremacy and allegiance, or do writer, perhaps, who mentions this very 

any other thing to which, by the laws remarkable aggression on the establuhe4 

and statutes of the realm, or those nf the church. 



282 DISMISSAL OF ROCHESTER. Chap. XIV. 

held in his presence at the king's particular command, be« 
tween divines of both persuasions, that it had much the 
appearance of a resolution taken at court to exclude from 
the high offices of the state all those who gave no hope of 
conversion.^ Clarendon had already given way to Tyrcon- 
nel in the government of Ireland ; the privy seal was be- 
stowed on a catholic peer, lord Arundel ; Lord Bcllasis, of 
the same religion, was now placed at the head of tlie com- 
mission of the treasury ; Sunderland, though he did not yet 
cease to conform, made no secret of his pretended change 
of opinion ; the council-board, by virtue of the dispensing 
power, was filled Avith those who would refuse the test ; a 
small junto of catholics, with father Petre, the king's con- 
fessor, at their head, took the management of almost all 
affairs upon themselves ; ^ men whose known want of prin- 
ciple gave reason to expect their compliance were raised to 
bishoprics ; there could be no rational doubt of a concerted 
scheme to depress and discountenance the established church. 
The dismissal of Rochester, who had gone great lengths to 
preserve his power and emoluments, and would in all proba- 
bdity have concurred in the establishment of arbitrary power 
under a protestant sovereign,^ may be reckoned the most un- 

1 The catholic lords, according to Ba- catholiques. My lord Sunderland ne se 
rillou, had represented to the king that niaintient que par ceux-ei, et par son de- 
nothing could be done with parliament Toueuient i faire tout ce qu"il croit 6tre 
so long as the treasurer caballed against agreable sur ce point. II a le secret des 
the designs of his m;ijesty. James prom- affaires de Rome." Mazure. ii. 124. "On 
ised to dismiss him if he did not change feroit ici," says Barilloii, the same year, 
his religion. Mazure, ii. 170. The queen ''ce qu'on fait eii France" [that is, I 
had previously been rendered his enemy suppose, dragonner et fusilier les here- 
by thcartsof Sunderland, who persuaded tiquesj, "si Ton pouvoit esperer de i-eus- 
her that lord and lady Rochester had sir." P. 127. 

4#lored the king's intimacy with the 3 Rochester makes so Ter> 'jad a figure 

countess of Dorchester in order to thwart in all Barillon"s correspondence, that 

the popish intrigue. Id. 149. "On volt," there really seems no want of candor in 

says Barillon on the treasurer's dismissal, this supposition. lie was evidently the 

" que la cabale catholique a entierement most active cobperator in the connection 

prevalu. On s'attendoit depuis quelque of both the brothers with France, and 

temps i ce qui est arrive au comte de seems to have had as fe.v conipunctioas 

Rochester; mais I'execution fait encore Tisitings, where the church of Kugland 

une nouvelle impression sur les esprits." was not concerned, as Sunderland him- 

p. 181. self. Oodolphin was too much implicated, 

2 Life of James, 74. Barillon fre- at least by acquiescence, in the counsels 
quently mentions this cabal as having of this reign ; yet we find him suspected 
in effect the whole conduct of affairs in of not wishing " se passer entierement de 
their hands. Sunderland belonged to parlement, et i rompre nettenient ayec 
them; but Jefferies, being reckoned on le prince d'Orange."' Fox, Appendix, 
the protestant side, had, I believe, very p. 60. 

little influence for at least the two latter If Rochester had gone over to the Ro- 

years of the king's reign. " Les affaires manixts, many, probably, would have 

de ce pays-ci," says Bonrepos in 1086, followed : on the other hand, his steadi- 

" ne rouleat i present que sur la religion, ness retained the wavering. It was one 

Le roi est absolument gouverne par les of the first great disappointments with 



James n. THE PRINCE OF ORANGE. 283 

equivocdl evidence of the king's intentions ; and from thv^nce 
we may date the decisive measures that were taken to coun- 
teract them. 

It was, I do not merely say the interest, but the clear right 
and bounden duty, of the prince of Oran";e to „ . , 

y ' t^ _ f Prince of 

watch over the internal politics of England, on Orange 
account of the near connection which liis own *'=''''"«'i- 
birth and his marriage with the presumptive heir had cre- 
ated. He was never to be reckoned a foreigner as to this 
country, which, even in the ordinary course of succession, 
he might be called to govern. From the time of his union 
with the princess Mary he was the legitimate and natural 
ally of the whig party ; alien in all his sentiments from his 
two uncles, neitlier of whom, especially James, treated him 
with much regard, on account merely of his attachment to 
religion and liberty, for he might have secured their affec- 
tion by failing into their plans. Before such diiferences as 
subsisted between these personages, the bonds of relation- 
ship fall asunder like flax ; and William would have had at 
least the sanction of many precedents in history if he had 
employed his influence to excite sedition against Charles or 
James, and to thwart their administration. Yet his conduct 
ai)pears to have been merely defensive; nor had he the re- 
motest coimection with the violent and factious proceedings 
of Shatte.-bury and his partisans. He played a very dex- 
terous, but apparently very fair, game tiiroughout the last 
years of Charles, never losing siglit of the popular party, 
through whom alone he could expect influence over P^ngland 
during the life of his father-in-law, while he avoided any 
direct rupture with the brothers, and every reasonable pre- 
text for their taking offence. 

It has never been established by any reputable testimony, 
though perpetually asserted, nor is it in the least degree 
probable, that William took any share in prompting the in- 
vasion of Monmouth.^ But it is nevertheless manifest that 

which the king met. But his dismiss&l and hazardous policy was totally out of 

from the treasury created a teusible William's character: nor is there much 

alarm. Dalrymple, 179. more roa-ion to believe what is iusinuuted 

1 Lord Dartmouth wrote to s.ay that by Juuics himself (Macplierson's Ex- 

Fleti-lier told him there were good tracts, p. 144; Life of James, ii. 34), 

grounds to suspect that the prince, un- that Sunderland had been in secret cor- 

derhand, encoura'jed the ex[>edition, «ith respondence with Monmouth, unleM, 

design to ruin the duke of Monmouth ; indeed, it were, as seems hinted in tiM 

and tbis Dalrymple belie.es, p. 130. It latter work, with the kini^'H knowledge 
ig needless to observe that such subtle 



284 



EFFECT OF MONMOUTH'S REBELLION. Cha.p. XIV 



he derived the greatest advantage from this absurd rebellion 
and trorn its faiiur^^, not only as it removed a mischievoua 
adventurer, whom the multitude's idle predilection had ele- 
vated so liigh that factious men would, under every govern- 
ment, have turned to account his ambitious imbecility ; but 
as the cruelty with which this unhappy enterprise was pun- 
ished rendered the king odious,^ while the success of his arms 
inspired him with false confidence and neglect of caution. 
Every month, as it brought forth evidence of James's arbi- 
trary projects, increased the number of those who looked for 
deliverance to the prince of Orange, either in the course of 
succession, or by some special intei'ference. He had, in fact, 
a stronger motive for watching the councils of his father-in- 
law than has generally been known. The king was, at hi3 
accession, in his fifty-fifth year, and had no male children ; 
nor did the queen's health give much encouragement to ex- 
pect them. Every dream of the nation's voluntary return to 
the church of Rome must have vanished, even if the consent 
of a parliament could be obtained, which was nearly vain 
to think of; or if open force and the aid of France should 
enable James to subvert the established religion, what had 
the catholics to anticipate from his death but that fearful 



1 The number of persons who suffered 
tho sentence of the law, in the famous 
western assize of Jefferies, has been dif- 
ferently sfatej ; but according to a list 
in the Harleian Collection, n. 4689, it 
appears to be as follows : at Winchester, 
one (Mrs. Lisle) executed; at Salisbury, 
Done ; at Dorchester, 74 executed, 171 
transported; at Exeter, 14 executed, 7 
transported ; at Taunton, 144 executed, 
284 transported ; at Wells, 97 executed, 
893 transported. In all, 330 executed, 
855 transported ; besides many that were 
left in custody for want of evidence. It 
may be observed that the prisoners sen- 
tenced to transportation appear to have 
been made over to some gentlemen of 
interest at court, among others to sir 
Christopher Musgrave, who did not blush 
to beg the grant of their unfortunate 
countrymen to be sold as slaves in the 
colonies. 

The apologists of James II. have en- 
deavored to lay the entire blame of these 
cruelties on Jefferios, and to represent 
the king as ignorant of them. Roger 
North tells a story of his brother's inter 
ference, which is plainly contradicted by 
known dates, and the falsehood of which 
throws just suspicion on his numerous 



anecdotes. See State Trials, xi. 303. But 
the king speaks with apparent appro- 
bation of what he calls JeiTeries"s cam- 
paign, in writing to the prince of Orange 
(Dalrymple, 165) ; and I have heard that 
there are extant additional pi oofs of his 
perfect .acquaintance with the details of 
those assizes : nor, indeed, can he be 
supposed ignorant of them. Jefferies 
himself, before his death, declared that 
he had not been half bloody enough for 
him by whom he was employed. Burnet, 
651 (note to Oxford edition, vol. iii.). 
The king, or his biographer in his behalf, 
makes a very awkward apology for the 
execution of major Holmes, which is 
shown by himself to have been a grosf 
breach of faith. Life of James, ii. 43. 

It is unnecessary to dwell on what 
may be found in every history — the 
tr:al.s of Mrs. Lisle, Mrs. Gaunt, and 
alderman Cornish ; the former before 
Jefferies, the two latter before Jones, bia 
successor as chief-justice of K. B., a 
judge nearly as infamous as the former, 
though not altogether so brutal. Both 
Mrs. Lisle's and Cornish's convictions 
were without evidence, and con.sequently 
were reversed after the RevoiUtii)n Stat« 
Trials, vol. xi. 



/AMES n. INTRIGUE TO SET ASIDE PRINCESS OF ORANGE. 285 

reaction which had ensued upon the accession of Elizabeth? 
This had ah'eady so much disheartened the moderate part of 
their body that they were most anxious not to urge forward 
a change for which the kingdom was not ripe, and which was 
80 little likely to endure, and used their influence to promote 
a reconciliation between the king and prince of Orange, con- 
tenting themselves with that i'ree exercise of their worship 
which was permitted in Holland.* But the ambitious priest 
hood who surrounded the tlu-one had bolder projects. A 
scheme was formed early in the king's reign to exclude the 
princess of Orange from the succession in favor 
of her sister Anne, in the event of the lalter's tiugtue 
conversion to the Romish faith. The French ^l^^t^ 
ministers at our court, Barillon and Bonrepos, 
gave ear to this hardy intrigue. They flattered themselves 
that both Anne and her husband were favorably disposed. 
But in this they were wholly mistaken. No one could be 
more unconquerably fixed in her religion than rgjgctcd by 
that princess. The king himself, when the Dutch th«king. 
ambassador, Van Citers, laid before him a document, proba- 
bly drawn up by some catholics of his court, in which these 
audacious speculations were developed, declared his indigna- 
tion at so criminal a project. It was not even in his power, 
he let the prince afterwards know by a message, or in that 
of parliament, according to the principles which had been 
maintained in his own behalf, to change the fundamental 
order of succession to the crown.^ Nothing indeed can more 
forcibly paint the desperation of the popish faction than their 

1 Several proofs of this appear in the William openly declared his willing- 

corre8pondence of Barillon. Fox, 135; ness to concur in taking off the penal 

Mazure, ii. 22. The nuncio, M. d'AdJa, laws, provided the test might remain, 

was a moderate man. and united with Burnet, 694; Dalrjniple, 18-1; Mazure, 

the moderate catholic peers. Bellasis, ii. 216, 250. 346. James replied that he 

Arundel, and Powis. Id. 127. This must have all or nothing. Id. 3-',^. 
party urged the king to keep on good ^ I do not know that this intrigue has 

terms wit.i the prince of Orange, and to been brought to light before the recent 

give way about the test. Id. 1S4, 255. valuable publication of M. Mazure, cer- 

They were disgusted at father l'etre"8 taiiily not with such full cviileice. See 

introduction into the privy council ; 308, i. 417; ii. 128, 160, 165, 167, 182, 183, 

853. But it has ever been the niistbr 192. Barillon says to his master in one 

tune of that respectable body to suffer place, — " C'est une matiero fort delicate 

unjustly for the follies of a few. Barillon i traiter. .le .«ais pourtaiit (ju'on en 

admits very early in James's reign that parle au roi d".\ngleterre ; et qu'avec le 

many of them disliked the arbitrary pro- temps on ne dejiespure piis de trouver dea 

ceedings of the court: "lis pretendent mo_\ens pour faire passer la couronne 

fetre bons Anglois, c'est-i-dire, ne p,as sur hi tete dun heritier catholiquc. II 

desirer que le roi d'Angleterre 3ti i la faut pour cela venir i bout de beaucoup 

nation ses privileges et sea libertes." de choses qui ne sont encore que com 

Mazure, i. 404. meuceea." 



286 CHURCHILL AND SUNDERLAND. Chap. XIV 

entertainment of so preposterous a scheme. But it naturally 
increased tlie solicitude of William about the intrigues of the 
English cabinet. It does not appear that any direct over- 
tures were made to the prince of Orange, except by a very 
few malecontents, till the embassy of Dykvelt from the States 

in the Spraig of 1G87. It was William's object to 
tl^^uiak- °^ ascertain, through that minister, the real state ot 
eontents to parties in England. Such assurances as he car- 
of\hauge. I'ied back to HoUand gave encouragement to an 

enterprise that would have been equally injudi- 
cious and unwarrantiible without them.^ Danby, Halifax, 
Nottingham, and others of the tory as well as whig factions, 
entered into a secret correspondence with the prince of 
Orange; some from a real attachment to the constitutional 
limitations of monarchy ; some from a conviction that, with- 
out open apostasy from the protestant faith, they could never 
obtain from James the prizes of their ambition. This must 
have been the predominant motive with Lord Churchill, who 
never gave any proof of solicitude about civil liberty ; and 
his influence taught the princess Anne to distinguish her in- 
terests from those of her father. It was about this time also 
that even Sunderland entered upon a mysterious commu- 
nication with the prince of Orange ; but whether he after- 
wards served his present master only to betray him, as has 
been generally believed, or sought rather to propitiate, by 
clandestine profession.;, one who might in the course of 
events become such, is not perhaps what the evidence al- 
ready known to the world will enable us to determine.^ The 
apologists of James have often represented Sunderland's 
treachery as extending back to the commencement of this 
reign, as if he had entered upon the king's service with no 
other aim than to put him on measures that would naturally 
lead to his ruin. But the simpler hypothesis is probably 
nearer the truth ; a corrupt and artful statesman could have 
no better prospect for his own advantage than the power and 
popularity of a government which he administered; it was a 
conviction of the king's incorrigible and infatuated adherence 

1 Burnet; D.ilrymple; Mazure. compliment by Dykvelt, May 28, refer- 

2 The correspondence bei;an by an af- ring to what that envoy had to commu- 
fectedly obscure letter of lady Sunderland nicate. Churchill. Nottingham, Koches- 
to the prince of Orange, dated March 7, ter, Devonshire, and others, wrote als* 
1687 : Dalrj mple, 187. The meaning, by Dykvelt. Halifax was in correspond 
however, cannot be misunderstood. Sun- eiice at the end of 1686. 

derlaud himself seut a short letter of 



vAMEsn. DECLARATION OF INDULGENCE. 287 

to designs which the rising spirit of the nation rendered 
utterly infeasible, an apprehension that, whenever a free par- 
liament should be called, he might experience the fate of 
Strafford as an expiation for the sins of the crown, which 
determined him to secure as far as possible his own indem- 
nity upon a revolution that he could not have withstood.^ 

The dismissal of Rochester was followed up, at no great 
distance of time, by the famous declaration for li!)- Declaration 
crty of conscience, suspending the execution of all for liberty r.f 

11 • ]• • 1 /■ 1 1 conscience 

penal laws concerning religion, and ireely pardon- 
ing all offences asrainst them, in as full a manner as if each 
individual had been named. He declared also his will and 
pleasure that the oaths of supremacy and allegiance, and the 
several tests enjoined by statutes of the late reign, should no 
longer be required of any one before his admission to offices 
of trust. The motive of this declaration was not so much to 
relieve the Roman catholics from penal and incapacitating 
statutes (which, since the king's accession and the judgment 
of the court of king's bench in favor of Hales, were virtually 
at an end), as, by extending to the protestant dissenters the 
same lull measure of toleration, to enlist under the standard I 
of arbitrary power those who had been its most intrepid and 
steadiest adversaries. It was after the prorogation of parlia- 
ment that he had begun to caress that party, who in tlie first 
months of his reign had endured a continuance of their per- 
secution.^ But the clergy in general detested the noncon- 
formists hardly less than the papists, and had always abhorred 
the idea of even a parliamentary toleration. The present 

• Sunderland does not appear, by the nate for its money. Maziire, 372 ; Dal- 

extracts from Barillon's letters published rymple, 270, et post. Louis only gave 

Dy M. Mazure, to have been the adviser him half what he demanded. Without 

of the kind's most injudiciou.s measures, the blindest submission to the king, he 

Ue was united with the (jueen, who had was every moment faljing; and this drove 

more modenition than her husband. It him into a step as injudicious as it was 

is Siiid by Barillon that both he and unprincipled, his pretended change of 

I'etre were against the prosecution of religion, which was not publicly made 

the bishops: ii. 448. The king himself till June. 1C88, though he had been 

~ ascribes this step to JelTeries, and seems privately recoaciled, it is said (Mazure, 

to glance also at Sunderland as its ad- ii. 463), more than a year before by 

viser. Life of James, ii. 156. He speaks father i'etre. 

more explicitly as to Jetferies in .Mac- '- " This defection of these hi.«i tJajesty 

phersou's Extracts, 1.51. Yet lord Clar- had hitherto put the greatest confidence 

endon's Diary, ii. 49, tends to acquit in [Clarendon and Itochester], aim the 

Jefferies. Probably the king had nobody sullen disposition of the church of Eng- 

to blame but himself. One cause of land party in genenil, made him think it 

Sunderland's continuance in the appar- nece-s-sary to reconcile another; and yet 

ent support of a policy which he knew to he hoped to do it in such a manner as 

be destructii'e was his poverty, lie was not to disgust quite the churchiuaD 

In the pay of France, and even importu- neither." Life of James, ii. 1U2. 



288 ADDRESSES IN FAVOR OF CiiAi-. XIV. 

declaration went much farther than 'the recognized preroga- 
tive of dispensing with prohibitory statutes. Instead of re- 
moving the disability from individuals by letters patent, it 
swept away at once, in effect, the solemn ordinances of the 
legislature. There was, indeed, a reference to the future 
concurrence of the two houses, whenever he should think it 
convenient for them to meet; but so expressed as rather to 
insult, 'han pay respect to, their authority.^ And no one 
could help considering the declaration of a similar nature just 
published in Scotland as the best commentary on the present. 
In that he suspended all laws against the Roman catholics 
and moderate presbyterians, "by his sovereign authority, 
prerogative royal, and absolute powei', which all his subjects 
were to obey without reserve;" and its whole tenor spoke, in 
as unequivocal language as his grandfather was accustomed 
to use, his contempt of all pretended limitations on his will.*^ 
Though the constitution of Scotland was not so well balanced 
as our own, it was notorious that the ci'own did not legally 
possess an absolute power in that kingdom ; and men might 
conclude that, when he should think it less necessary to 
observe some measures with his English subjects, he would 
address them in the same strain. 

Those, indeed, who knew by what course his favor was to 
Addresses in be sought, did not hesitate to go before and light 
favor of It. Yi'im^ as it were, to the altar on which their coun- 
try's liberty was to be the victim. Many of the addresses 
which fill the columns of the London Gazette in 1087, or 
occasion of the declaration of indulgence, flatter the king 
with assertions of his dispensing power. The benchers and 
barristers of the Middle Temple, under the direction of the 
prostitute Shower, were again foremost in the race of infamy.' 
They thank him " for asserting his own royal prei'ogatives, 
the \ ery life of the law, and of their profession ; which pre- 
rogatives, as they were given by God himself, so no power 
upon earth could diminish them, but they must always remain 
entire and inseparable from his royal person ; which preroga- 

1 London Gazette, March 18, 1687. either. The former, eminent abovK 
EUIph, 945. others for fulsome servility, is tradi- 

2 llalph, 943. Maznre, ii. 207. tionally Siiid to be the clandestine pro- 

3 {But these addres.ses from the Middls duction of three of the benchers, of 
and Inner Temple, we are informed by whom Chauncy, the historian of Ilerfr 
sir James Macki itosh, '"from recent ex- fordshire, was one." Uist. of .Tames II, 
amination of the records of those bodies, p. 177.] • 

do not appear to have been voted by 



Jambs II. DECLARATION OF INDULGENCE. 289 

lives, as the addressers had studied to know, so they were re- 
solved to defend by asserting with their Hves and fortunes 
that divine maxim, a Deo rex, a rege lex."^ 

These addresses, which, to the number of some hundred.'?, 
were sent up ft'om every description of persons, the clergy, 
the nonconformists of all denominations, the grand juries, 
the justices of the peace, the corporations, the inhabitants of 
towns, in consequence of the declaration, afford a singular 
contrast to what we know of the prevailing dispositions of 
the people in that year, and of their general abandonment of 
the king's cause before the end of the next. Those from the 
clergy, indeed, disclose their ill-humor at the unconstitutional 
indulgence, limiting their thanks to some promises of I'avor 
the king had made towards the established church. But as 
to the rest, we should have cause to blush for the servile hy- 
pocrisy of our ancestors, if there were not good reason to 
believe that these addresses were sometimes the work of a 
small minority in the name of the rest, and that the grand 
juries and the magistracy in general had been so garbled 
for the king's purposes in this year that they formed a very 
inadequate representation of that great class from which they 
ought to have been taken.^ It was however very natural 
that they should deceive the court. The catholics were 
eager for that security which nothing but an act of the leg- 
islature could afford ; and James, who, as well as his minis- 
ter, had a strong aversion to the measure, seems about the 
latter end of the summer of 1 G87 to have made a sudden 
change in his scheme of government, and resolved once 
more to try the disposition of a parliament. For this pur- 
pose, having dissolved that from which he could expect 

1 London G.azette, June 9, 1687. instint.aneously as parasites on the stag* 

Sho-wer h.ad been knighted a little be- desert their patron on the first tidiags of 

fore, on presenting, as recorder of Lon- his ruin. 

don. an address from the grand jury of The dissenters have been a littU 

Mildle.'^ex, thanking the king for his ashamed of their compliance with th« 

declanition. Id. May 12. declaration, and of their silence in th« 

3 London Gazette of 16S7 and 1688, popish controversy during this reign, 

passim, llalpb, 946, 368. These ad- Neal, 755, 768; and see liiog. Urit., art. 

dresses grew more ardent after the Alsop. The best excuses are, that they 

queen's pregnaBcy beciime known. They had been so harassed that it was not io 

were renewed, of course, after the birth human nature to refuse a mitigation of 

of the prince of Wales. Hut .scarce any suffering almost on any terms ; that they 

appear after the expected invasion was were by no means unanimous in thell 

announced. The tories (to whom add tninsitory support of the court ; and thaJ 

the dissenters) seem to have thrown off they gladly embraced the first offers of 

the miu^k at once, and deserted the king, an equal indulgence held out to tliem hj 

irlKiu tbey bad so (grossly flattered, as the church. 



290 CORPORATIONS REMODELLED. CiiAP. XIV. 

nothing hostile to the church, he set himself to manage the 
election of another in such a manner as to insure his main 
object, the security of the Romish religion.* 

"His fir^t care," says his biographer Innes, "was to 
New-model- P"'"g6 the Corporations from that leaven which 
ling of the \vas in danger of corrupting the wliole kingdom; 
co.poraions. ^^^ j^^ appointed certain regulators to inspect the 
conduct of several borough towns, to correct abuses where i( 
was practicable, and where not, by forfeiting their charters, 
to turn out such rotten members as infected tlie rest. But in 
this, as in most other -^ases, tlie king had the fortune to 
choose persons not too well qualified ibrsuchan employment, 
and exti'emely disagreeable to the people ; it was a sort of 
motley council made up of catholics and presbyterians, a 
composition which was sure never to hold long together, or 
tluit could probably unite in any method suitable to both 
their interests ; it served therefore only to increase the pub- 
lic odium by their too arbitrary ways of turning out and 
putting in ; and yet those who were thus intruded, as it 
were, by force, being of the presbyterian party, were by 
this time become as little inclinable to favor the king's inten- 
tions as the excluded members." ^ 

This endeavor to violate the legal rights of electors, as 
well as to take away other vested franchises, by new-model- 
ling corporations through counnissions granted to regulators, 
was the most capital delinquency of the king's government; 
because it tended to preclude any reparation for the rest, and 
directly attacked the fundamental constitution of the state.^ 
But, like all his other measures, it displayed not more ill- 
will to the liberties of the nation than inability to overthrow 
them. The catholics were so small a body, and so weak, 
especially in corporate towns, that the whole effect produced 

1 " The king, now finding that nothing create new peers enougli to insure the 

which liad the least appearance of nov- repeal of the test; Manure, iii. 81 ; but 

elty, though never so well warranted by intimates in his proclamatiou that he 

the prerogative, would go down with the would consent to let llomau catholics 

people unless it had the parliamentary remain incapable of sitting in the lower 

stamp on it, resolved to try if he could house. Id. 82 ; Italph, lUlO. But this 

get the penal laws and test taken otf by very proclamation was revoked iu a few 

that authority." Life of .lames, ii. 134. days.] 

But it .seems, by M. JIazure"s authorities, - Life of .lames, p. 139. 

that neither the king nor lord Sunder- 3 llalph, 9Go, 966. The object was to 

land wished to convoke a parliament, let in the dissenters. This w.is evideiitly 

■vliich was pressed forward by the eager a desperate game : James liad eAer mor- 

catliolics : ii. 399, iii. 65. [The procla- tally hated the scct;iries as eneuiies to 

matiou for a new parliament came out monarchy ; aud they were irrecoucilabljf 

Sept. 21, 1688. The lung intended to adverse to all his scliemes. 



James II. EFFECTS OF THE "REGULATION." 291 

by the regulators was to place mnp,i;'ipal power and trust in 
the litiiuls of tlie non-coulbrmi.-ts, tliu.-;e precarious and un- 
faithful allies of the court, wliose re>entment of past oppres- 
sion, hereditary attaehinent to popular principles of govern- 
ment, and inveterate abhorrence of popery, were not to be 
effaced by an unnatural coalition. Hence, thougli they 
availed themselves, and surely without reproach, of the tol- 
eration held out to them, and even took the benefit of the 
scheme of regulation, so as to fill the corporation of London 
and many others, they were, as is confessed above, too much 
of Knglislunen and protestants for the purposes of the court. 
The wiser part of the churchmen made secret overtures to 
their i)arty ; and by assurances of a toleration, if not also of 
a comprehension within the Anglican pale, won them over to 
a hearty concurrence in the great project that was on foot.* 
The king found it necessary to descend so much from tJie 
haughty attitude he had taken at the outset of his reign, as 
personally to solicit men of rank and local influence for their 
votes on the two great measures of repealing the test and 
penal laws. The country gentlemen, in their different coun- 
ties, were tried with circular questions, whether they would 
comply with the king in their elections, or, if themselves 
chosen, in parliament. Those who refused such a promise 
were erased from the lists of justices and deputy-lieutenants.* 
Yet his biographer admits tiiat he received little encourage- 
ment to proceed in the experiment of a parliament ; ^ and it 
is said l)y the French ambassador that evasive answers were 
returned to these questions, with such uniformity of expres- 
sion as indicated an alarming degree of concert.* 

It is unnecessary to dwell on circumstances so Affair of 
well known as the expulsion of the fellows of Mag- MiigJaien 
dalen College.'' It Avas less extensively mischiev- ° ''^' 

1 Burnet ; Life of James, 169; D'Oyly's necessary for that purpose. And thus 
Life ol Saucroft, i. 3"2U. Lord llalif.ix, as stands the state of tliis natiou in th:« 
is supposed, published a letter of advice uiouth of September, 1688." P. &i- No- 
lo the di.s..ieiiter.«, waniiug tlieui against a tice is given in the Loudon (lazette for 
coalition with tbe court, aud promising December 11, 1687. that the lists of jus 
all iiidulgeuce from the church. Kalph, tices aud deputy-lieutenants would b« 
950 ; Soiiiers Tracts, viii 50. ^evi^ed. 

2 llalph, 907 ; Lonsdale, p. 15. " It is 3 Life of James, 183. 
to be observed," sjiys the author of this * Mazure, ii. 302. 

memoir. " that most part of the offices in 5 The reader will find almost eyery- 

the nation, as justices of the peace, de- thing relative to the subject in that in- 

puty-lieuteuants, mayors, aldermen, aud comparable repertory, the State Trials, 

a'eemen of towns, are tilled with Kouian xii. 1 ; also some notes In the Oxforil 

catholics and dissenters, after liaviug edition of Burnet. 
•uHered as many regulations as were 



292 FELLOWS OF MAGDALEN EXPELLED. Chap. XIV. 

ous than the new-modelling of corporations, but perhaps a 
more ghiring act of dej^potism. For tliough the crown had 
been accustomed from the time of the Reformation to send 
very peremptory commands to ecclesiastical foundations, and 
even to dispense with their statutes at discretion, with so lit- 
tle resistance that few seemed to doubt of its prerogative ; 
though Elizabeth would probably have treated the fellows of 
any college much in the same manner as James II,, if they 
had pioceeded to an election in defiance of her recommenda- 
tion ; yet the right was not the less clearly theirs, and the 
struggles of a century would have been thrown away, if 
James II. was to govern as the Tudors, or even as his father 
and grandfather, had done before him.* And though Parker, 
bishop of Oxford, the first president whom the ecclesiastical 
commissioners obtruded on the college, was still nominally a 
protestant,^ his successor Giffard was an avowed member of 
the church of Rome. The college was filled with persons of 
the same persuasion ; mass was said in the chapel, and the 
established religion was excluded with a degree of open force 
which entirely took away all security for its preservation in 
any other place. This latter act, especially, of the Magdalen 
drama,'in a still gi-eater degree than the nomination of Mas- 
sey to the deanery of Christ Church, seems a decisive proof 
that the king's repeated promises of contenting himself with 
a toleration of his own religion would have yielded to his 
insuperable bigotry and the zeal of his confessor. We may 
perhaps add to these encroachments upon the act of uniform- 
ity, the design imputed to him of conferring the archbishop- 
ric of York on father Petre ; yet there would have been 
difficulties that seem insurmountable in the way of this, 
since, the validity of Anglican orders not being acknowledged 
by the church of Rome, Petre would not have sought conse- 
cration at the hands of Sancroft ; nor, had he done so, would 
the latter have conferred it on him, even if the chapter of 



1 [This is the only ground to be taken that " the legislatiTe power In matten 

in the great case of Magdalen College, as ecclesiastical was lodged in the king, and 

in that of Francis, at Cambridge, a little too ample to be limited by act of parlia- 

earlier; for the precedents of dispensing ment." Id. 971. — 1845.] 

with college stiitutes by the royal iiuthor- 2 Parker's Reasons for Abrogating the 

Ity were numerous. See Ralph, 958. Rut Test are written in such a tone as to 

it is one thiug to do au irregular act, and make his readiness to abandon the prot- 

another to enforce it. A vindication of estant side very manifest, even if the 

the proceedings of the ecclesiastical com- common anecdotes of him should be ex 

mission was published, wherein it is said aggerated. 



JAMES II. INFATUATION OF THE KING. 293 

York had gone dirough the indispensable form of an elec- 
tion.* 

The infatuated monarch was irritated ny that which he 
should have taken as a terrible warning, this re- jnfutuation 
sistance to his. will from the university of Oxford. °f thoking. 
That sanctuary of pure unspotted loyalty, as some would say, 
— that sink of all that was most abject in servility, as less 
courtly tongues might murmur, — the university of Oxford, 
which had but four short }('ars back, by a solemn decree in 
convocation, poured forth anathemas on all who had doubted 
the divine right of monarchy, or asserted the privileges of 
subjects against their sovereigns, which had boasted in its ad- 
dresses of an obedience without any restrictions or limitations, 
which but lecently had seen a known convert to popery, and 
a person disqualified in other ways, installed by the chapter 
without any remonstrance in the deanery of Christ Chui-ch, 
was now the scene of a firm though temperate opposition to 
the king's positive command, and soon after the willing in- 
strument of his ruin. In vain the pam[)hleteers, on the side 
of the court, upbraided the clergy with their apostasy from 
the principles they had so much vaunted. The imputation 
it was hard to repel ; but, if they could not retract their 
course without shame, they could not continue in it without 
destruction.^ They were driven to extremity by the order 
of May 4, 1688, to read the declaration of indulgence in their 
churches.^ This, as is well known, met with great resist- 
ance, and, by inducing the primate and six other bishops to 
present a petition to the king against it, brought on that fa- 
mous prosecution, which, more perhaps than all his former 
actions, cost him the allegiance of the Anglican church. The 
proceedings upon the trial of those prelates are so familiar aa 

1 It geems, however, confirmed by nobility, gentry, and commonalty, oui 

Mazure, ii. 31)0, with the addition that clergy have been publisliin<; to the world 

Petre, like a second Wolsey, aspired also that the king can do greater things than 

to be chancellor. The pope, however, are done in his declaration ; but now the 

would not make him a bishop, against scene is altered, and they are become 

the rules of the order of .Jesuits, to which more concerned to maintain their reputa- 

he belonged. Id. 241. James then tried, tion even with the commonalty than 

through lord Castclmain, to get him a with the king." See also in the same 

cardinal's hat, but with as little sue- volume, p. 19, " A rcmonstnince from the 

cess. church of England to both hou.ses of par- 

- •' Above twenty years together," says liament," 1685; and p. 145, " A new test 

gir Roger I'Estrange, perhaps himself a of the ciiurch of England's loyalty;" both, 

disguised catholic, in his reply to the rea- especially the latter, bitterly reproaching 

sons of the clergy of the diocese of Ox- her members for *heir apostasy froui 

ford against petiti(ming (Somcrs Tracts, former professirn? 

Tiii. 45), " without any regard to the ^ llalph, 982. 



294 TRIAL OF THE BISHOPS. Chap. XIV. 

to require no particular notice.^ What is most -worthy of 
remark is, that the very party who had most extolled the 
royal prerogative, and often in such terms as it" all limitations 
of it were only to subsist at jileasure, became now the instru- 
ments of bringing it down within the compass and control of 
the law. If the king had a right to suspend the execution 
of statutes by proclamation, the bishops' petition might not 
indeed be libellous, but their disobedience and that of the 
clergy could not be warranted; and the principal argument 
both of the bar and the bench rested on the great question 
of that prerogative. 

The king, meantime, was blindly hurrying on at the insti- 
gation of his own pride and bigotry, and of some ignorant 
priests ; confident in the fancied obedience of the church, and 
in the hollow support of the dissenters, after all his wiser 
counsellors, the catholic peers, the nuncio, perhaps the queen 
hei'self, had grown sensible of the danger, and solicitous for 
temporizing measures. He had good reason to perceive 
that neither the fleet nor the army could be relied upon ; to 
cashier the most rigidly pi-otestant otficers, to draft Irish 
troops into the regiments, to place all important eoramands 
in the hands of catholics, were difficult and even desperate 
measures, which rendered his designs more notorious, with- 
out rendering them more feasible. It is among the most 
astonishing parts of this unhappy sovereign's impolicy, that 
he sometimes neglected, even offended, never steadily and 
sufficiently courted, the sole ally that could by possibility 
have cooperated in his scheme of government. In h!s broth- 
er's reign James had been the most obsequious and unhesi- 
tating servant of the French king. Before his own accession, 
his first step was to implore, through Barillon, a continuance 
of that support and jjrotection, without which he could under- 
take nothing which he had designed in favor of the calholics. 
He received a present of 500,000 livres with tears of grati- 
tude; and telhng the ambassador he had not disclosed his 
real designs to his ministers, pressed for a strict alliance with 
Louis, as the means of accomplishing thein."^ Yet, with a 
strange inconsistency, he drew off" gradually from these pro- 
fessions, and not only kept on rather cool terms with France 
during part of his reign, but sometimes played a double 
game by treating of a league with Spain. 

1 See State Trials, xii. 183. D'Oyly's 2 Fox, App. 29; Dalrymple, 107; M» 
Life of Sancroft, i. 250. zure. i. 396, 433. 



/AMES II. JAMES'S COLDNESS TO THE FRENCH KING. 295 

The secret of this uncertain policy, which has not been 
well known till very lately, is to be found in tlie 
king's character. James had a real sense of the coiXess 
dignity pertaining to a king of E^ngland, and mucli towards 
of the national pride as well as that of his rank. 
He felt the degradation of imjjortuning an equal sovereign 
for money, which Louis gave less frequently and in smaller 
measure than it was demanded. It is natural for a proud 
man not to love those before whom he has abased himself. 
James, of frugal habits, and master of a great revenue, soon 
became more indifferent to a French pension. Nor was he 
insensible to tlie reproach of Europe, that he was grown the 
vassal of France and had tarnished the lustre of the English 
crown.^ Had he been himself protestant, or liis subjects 
catholic, he would probably have given the reins to that 
jealousy of his ambitious neighbor, which, even in his pecul- 
iar circumstances, restrained him from the most expedient 
course ; I mean expedient, on the hypothesis that to over- 
throw the civil and religious institutions of his people was to 
be the main object of his reign. For it was idle to attempt 
this without the steady cooperation of France ; and those 
sentiments of dignity and independence, which at first sight 
appear to do him honor, being without any consistent mag- 
uanimity of character, served only to accelerate his ruin, and 
confirm the persuasion of his incapacity.^ Even in the mem- 

1 Several proofs of this occur in the that James made so few applications for 

course of M. Manure's work. When the his aid. Uis hope seems to have been 

Dutch ambassador, Van ('iters, showed that by means of French troops, or troops 

him a paper, probably forged to exas- at least in his paj', he should get a foot- 

perate him, but purporting to be written ing in England; and this was what tlie 

by some catholics, wherein it was said other was too proud and jealous to per- 

that it would be better for the people to mit. " Comme le roi," he said, in 1687, 

be vas.sals of France than slaves of the " ne doute pas de mon affection et du 

devil, he burst out into rage. " • Jamais! desir que j'ai de voir la religion catho- 

non, jamais! je ne ferai ricn qui me lique bien etablie en Angleterre. il faut 

puisse niettre au-de?sous des rois de croire qu'il se trouve assoz de force et 

France et d'Espagne. Vassal 1 vassal de d"autorite pour executer .ses dcsseins, 

la France 1 ' s'ccria-t-il avec emportement. puisqu'il n'a pas recours k moi." P. 258 ; 

' Monsieur I si le parlement avoit voulu, also 174, 225, 320. 

e'il vouloit encore, j'aurois porte, je por- " James affected the same ceremonial 

terois encore la monarchic 4 un degre de as the king of France, and received the 

consideration qu'elle n"a jamais eu sous latter's ambassador sitting and covered, 

aucuu des rois mes predecesseurs, et votre Louis only said, smiling, ■' Le roi mon 

6tat y trouveroit peut etre sa propre fiere est fier, mais il aime asscz les pis- 

Becurite.' " Vol. ii. 165. Sunderland said toles de France." Mazurc, i. 423. ,\ more 

to Barillon, " I^e roi d'Angletcrre se re- extraordinary trait of James's pride is 

proche de ne pas etre en Europe tout ce mentioned by Dangeau, whom 1 quote 

qu'il devoit etre ; et souvent il se plaint from the Qii.arterly Ileview, xix. 470. 

que le roi votre maitre n'a pas pour lui After his retirement to St. Oermains he 

assez de consideration." Id. 313. On the woi-e violet in court mourning, which, 

other hand, Louis was much mortified by etiquette, was confined to the kings 
VOL. II. — c. 20 



296 



JAMES'S JEALOUSY OF LOUIS. 



Chap. XTV 



orable year 1GS8, thoTiijli the veil was at length torn from his 
eyes on the xvrge of the precipice, and he sought in trein- 
I)ling the assistance he had slighted, his silly pride made him 
half unwilling to be rescued ; and, when the French ambas- 
sador at the Hague, by a bold manoeuvre of diplomacy, as- 
serted to the States that an alliance already subsisted between 
his master and the king of England, the latter took offence 
•\t the unauthorized declaration, and complained privately 
that Louis treated him as an inferior.^ It is probable that a 
more ingenuous policy in the court of Whitehall, by deter- 
mining the king of France to declare war sooner on Hol- 
land, would have prevented the expedition of the prince of 
Orange.'^ 

The latter continued to receive strong assurances of attach- 
ment from men of rank in England ; but wanted that direct 
invitation to enter the kingdom with force which he required 
both for his security and his justification. No men who 
thought much about their country's interests or their own 
would be hasty in venturing on so awful an enterprise. The 
punishment and ignominy of treason, the reproach of history, 
too often the sworn slave of fortune, awaited its failure. 
Thus Halifax and Nottingham found their conscience or their 
courage unequal to the crisis, and drew back from the hardy 
conspiracy that produced the revolution.^ Nor, perhaps, 



of France. The courtiers were a little 
astonished to see solem gemimtm, though 
not at a loss where to worship. Louis, 
of course, had too much magnanimity to 
express resentment. But what a picture 
of littleness of spirit does this exhibit in 
a wretched pauper, who could only escape 
by the most contemptible insignificance 
the charge of most ungrateful insolence! 

i Mazure, iii. 50. James was so much 
out of humor at D'Avaux's interference 
that he asked his confidants " if the king 
of France thought he could treat liim 
like the cardinal of Furstenburg," a creat- 
ure of Louis XIV. whom he liad set up 
for the electorate of Cologne. Id. 69. 
He was, in short, so much displeased with 
his own ambassador at the Hague. Skel- 
ton, for giving in to this declaration of 
D'Avaux, that he not ouly recalled, but 
sent him to the Tower. Burnet is thei-e- 
fore mistaken, p. 768, in believing that 
there was actually an alli.ance. though it 
was very natural that he should give 
credit to what an ambassador asserted in 
a matter of such importance. In fact, a 
treaty was signed between James and 



Louis, Sept. IS, by which some French 
ships were to be under the former's 
orders. Mazure, iii. 67. 

2 Louis continued to find money, 
though despising James, and disgusted 
with him, probably with a view to his 
own grand interests. He should never- 
theless have declared war against Hol- 
land iq October, which must have put a 
stop to the armament. But he had dis- 
covered that James, with extreme mean- 
ness, had privately offered about the end 
of September to join the alliance against 
him as the only resource. This wretchei 
action is first brought to light by M. Ma- 
zure, iii. 104. He excused himself to the 
king of France by an assurance that Iio 
was not acting sincerely towards Holland. 
Louis, though he gave up his intention 
of declaring war, behaved with great 
magnanimity and compassion towards 
the falling bigot. 

^ Halifax all along discouraged the in 
vasion, pointing out that the king mads 
no progress in his schemes. Dalrymple, 
passim. Nottingham said he would keep 
the secret, but could not be a party to a 



James n. BIRTH OF PRINCE OF WALES. 297 

would the seven eminent persons, whose names are sub- 
scribed to the invitation addressed on the 30th of 
June, 1688, to the Prince of Orange, the earls of signed to** 
Danby, Shrewsbury, and Devonshire, lord Lumley, 'i^e prince of 
the bishop of London, Mr. Henry Sidney, and admi- 
ral Russell, have committed themselves so far, if the recent 
birth of a prince of Wales had not made some Birth of the 
measures of force absolutely necessary for the prince of 
common interests of the nation and the prince of 
Orange.^ It cannot be said without absurdity that James 
was guilty of any offence in becoming father of this child ; 
yet it was evidently that which rendered his other offences 
inexpiable. He was now considerably advanced in life ; and 
the decided resistance of his subjects made it improbable that 
he could do much essential injury to the established constitu- 
tion during the remainder of it. The mere certainty of all 
reverting to a protestant heir would be an effectual guarantee 
of the Anglican church. But the birth of a son to be nursed 
1^;^,,^,^^ in the obnoxious bigotry of Rome, the prospect of a regency 

r under the queen, so deeply implicated, according to common 
report, in the schemes of this reign, made every danger ap- 
^ pear more terrible. From the moment that the queen's preg- 
>j^^ nancy was announced, the catholics gave way to enthusiastic 
'P iinrepressed exultation ; and, by the confidence with which 
'V^ (hey prophesied the birth of an heir, furnished a pretext for 
the suspicions which a disappointed people began to enter- 
tain.^ These suspicions were very general : they extended 
to the highest ranks, and are a conspicuous instance of that 
prejudice which is chiefly founded on our wishes. Lord 
Danby, in a letter to William, of March 27, insinuates his 
doubt of the queen's pregnancy. After the child's birth, the 
seven subscribers to the association inviting the prince to 
come over, and pledging themselves to join him, say that not 
one in a thousand believe it to be the queen's; lord Devon- 
shire separately held language to the same effect.^ The 

treasonable undertaking (id. 228 ; Bur- follow that it ■would hare been despatched 

net, 764), and wrote as late as July to if the queen had borne a daughter, nor 

advise delay and caution. Notwithstand- do I think tliat it should have been, 

iug the splendid success of tlie opposite 2 iialph, 'J80 ; Mazure, ii. 367. 

counsels, it would be judging too servile- 3 Dalrymple, 216, 228. The prince 

•y by the event not to admit that they was urged in the ni''nioriaI of the seven 

were tremendously haairdous. to declare the fraud of the queen's preg- 

1 The invitation to William .seem? to nancy to be one of the grounds of hia 

have been in debate some time before the expedition. He did this : aud it is th« 

prince of Wales's birth ; but it does not only part of his declaraticn that is felse. 



298 JUSTICE AND NECESSITI Chap. XIV. 

princess Anne talked with little restraint of her suspicions, 
and made no scruple of imparting them to her sister.^ 
Though no one can hesitate at present to acknowledge that 
the prince of AVales's legitimacy is out of all question, there 
was enough to raise a reasonable apprehension in the pre- 
sumptive heir, that a party not really very scrupulous, and 
through religious animosity supposed to be still less so, had 
been induced by the undoubted prospect of advantage to 
draw the king, who had been wholly their slave, into one of 
those frauds which bigotry might call pious.^ 

The great event, however, of Avhat has been emphatically 

denominated in the language of our public acts the Glorious 

Revolution stands in need of no vulgar credulity. 

Justice and • , , • t r •. ^ t^ i 

necessity of DO mistaken prejudice, tor its support. It can only 
the Revoiu- j-ggt q^ the basis of a liberal theory of government, 
which looks to the public good as the great end for 
which positive laws and the constitutional order of states 
have been instituted. It cannot be defended without reject- 
ing the slavish principles of absolute obedience, or even that 
pretended modification of them which imagilies some extreme 
case of intolerable tyranny, some, as it were, lunacy of des- 

f)otism, as the only plea and palliation of resistance. Djubt- 
.ess the administration of James 11. was not of this nature. 
Doubtless he was not a Caligula, or a Commodus, or an Ez- 
zelin, or a Galeazzo Sforza, or a Christiern II. of Denmark, 
or a Charles IX. of France, or one of those almost innumera- 
ble tyrants whom men have endured in the wantonness of 
unlimited power. No man had been deprived of his liberty 
by any illegal warrant. No man, except in the single though 
very important instance of Magdalen College, had been de- 
spoiled of his property. I must also add that the government 
of James II. Avill lose little by comparison with that of his 
father. The judgment in favor of his prerogative to dispense 
with the test was far more according to received notions of 

J state Trials, xii. 151. Mary put Earl of Clarendon's Diary, 77, 79. State 

Bome Tery sensible questions to her Trials, ubi supri. 

sister, which show her desire of reaching - M. Mazure has collected all the pas- 

the truth in so important a matter, sages in the letters of Barillon and Bon- 

They were answered in a style which repos to the court of Frauue relative to 

shows that Anne did not mean to lessen the queen's pregnancy, ii. 358, and those 

her sister's suspicions. Dalrymple, 305. relative to the birth of the prince of 

Her conversation with lord Clarendon on Wales, p. 547. It is to be observed that 

this subject, after the depositions had this took place more than a month before 

been taken, is a proof that she had made the time expected, 
up her mind not to be convinced. Henry 



James n. OF THE REVOLUTION. 299 

law, far less injurious and unconstitutional, than that which 
gave a sanction to ship-money. Tlie injunction to read the 
declaration of indulgence in churches was less offensive to 
scrupulous men than the similar command to read the decla- 
ration of Sunday sports in the time of Charles I. Nor waa 
any one punished for a refusal to comply with the one ; while 
the prisons had been filled with those who had disobeyed the 
other. Nay, what is more, there are much stronger presump- 
tions of the father's than of the son's intention to lay aside par- 
liaments, and set up an avowed despotism. It is indeed amus- 
ing to observe that many who scarcely put bounds to their eu- 
logies of Charles I. have been content to abandon the cause of 
one who had no faults in his public conduct but such as seemed 
to have come by inheritance. The characters of the fathei 
and son were very closely similar ; both proud of their judg- 
ment as well as their station, and still more obstinate in their 
understanding than in their purpose ; both scrupulously con- 
scientious in certain great points of conduct, to the sacrifice 
of that power which they had preferred to everything else ; 
the one far superior in relish for the arts and for polite letters, 
the other more diligent and indefatigable in business ; the fa- 
ther exempt from those vices of a court to which the son was 
too long addicted ; not so harsh, perhaps, or prone to severity in 
Lis temper, but inferior in general sincerity and adherence to 
his word. They wei-e both equally unfitted for the condition 
in which they were meant to stand — the limited kings of a 
wise and free people, the chiefs of the English commonwealth. 
The most plausible argument against the necessity of so 
violent a remedy for public grievances as the abjuration of 
allegiance to a reigning sovereign was one that misled half 
the nation in that age, and is still sometimes insinuated by 
those whose pity for the misfortunes of the house of Stuart 
appears to predominate over every other sentiment which the 
history of the revolution should excite. It was alleged that 
the constitutional mode of address by parliament was not 
taken away ; that the king's attempts to obtain promises of 
support from the electors and probable representatives 
showed his intention of calling one ; that the writs were in 
fact ordered before the prince of Orange's expedition ; that 
after the invader had reached London, James still offered to 
refer the terms of reconciliation with his people to a free par- 
liament, though he could have no hope of evading any that 



300 JUSTICE AND NECESSITY Chap. XIV. 

might be proposed ; that by reversing illegal judgments, by 
annulling unconstitutional dispensations, by reinstating those 
who had been unjustly dispossessed, by punishing wicked ad- 
visers, above all, by passing statutes to restrain the excesses 
and cut off the dangerous prerogatives of the monarchy (as 
efficacious, or more so, than the bill of rights and other meas- 
ures that followed the revolution), all risk of arbitrary 
power, or of injury to the established religion, might have 
been prevented, without a violation of that hereditary right 
whicli was as fundamental in the constitution as any of the 
subject's privileges. It was not necessary to enter upon the 
delicate problem of absolute non-resistance, or to deny that 
the conservation of the whole was paramount to all positive 
laws. The question to be proved was, that a regard to this 
general safety exacted the means employed in the revolution, 
and constituted that extremity which could alone justify such 
a deviation from the standard rules of law and religion. 

It is evidently true that James had made very little prog- 
i'ess, or rather experienced a signal defeat, in his endeavor 
to place the professors of his own religion on a firm and 
honorable basis. There seems the strongest reason to believe 
that, far from reaching his end through the new parliament, 
he would have experienced those warm assaults on the 
administration which generally distinguished the house of 
commons under his father and brother. But, as he was in 
no want of money, and had not the temper to endure what 
he thought the language of republican faction, we may be 
equally sure that a short and angry session would have 
ended with a more decided resolution on his side to govern 
in future without such impracticable counsellors. The doc- 
trine imputed of old to lord Strafford, that, after trying the 
good-will of parliament in vain, a king was absolved from 
tlie legal maxims of government, was always at the heart of 
the Stuarts. His army was numerous, according at least to 
English notions ; he had already begun to fill it with popish 
officers and soldiers ; the militia, though less to be depended 
on, was under the command of lord and deputy lieutenants 
carefully selected ; above all, he would at the last have 
recourse to France ; and though the experiment of bringing 
over French troops was very hazardous, it is difficult to 
Bay that he might not have succeeded, with all these means, 
in preventing or putting down any concerted insurrection 



James II. OF THE REVOLUTION. 301 

But at least the renewal of civil bloodshed and the anarchy 
of rebellion seemed to be the alternative of slavery, il 
William had never earned the just title of our deliverer. It 
is still more evident that, after the invasion had taken place, 
and a general defection had exhibited the king's inability to 
resist, there could have been no such compromise as the 
tories fondly expected, no legal and peaceable settlement in 
what they called a free parliament, leaving James in the 
real and recognized possession of his constitutional preroga- 
tives. Tiio.~e who have grudged "William III. the laurels 
that he won for our service are ever prone to insinuate that 
his unnatural ambition would be content with nothing less 
than the crown, instead of returning to his country after he 
had convinced the king of the error of his counsels, and 
obtained securities for the religion and liberties of England. 
The hazard of the enterprise, and most hazardous it truly 
was, was to have been his ; the profit and advantage our 
own. I do not know that William absolutely expected to 
place himself on the throne ; because he could hardly antici- 
pate that James would so precipitately abandon a kingdom 
wherein he was acknowledged, and had still many adherents. 
But undoubtedly he must, in consistency with his magnani- 
mous designs, have determined to place England in its 
natural station, as a party in the great alliance against the 
power of Louis XIV. To this one object of securing the 
liberties of Europe, and chiefly of his own countrj^ the whole 
of his heroic life was directed with undeviating, undislieart- 
ened firmness. He had in view no distant prospect, when 
the entire succession of the Spanish monarchy would be 
claimed by that insatiable prince, whose renunciation at the 
treaty of the Pyrenees was already maintained to be invalid. 
Against the present aggressions and future schemes of this 
neighbor the league of Augsburg had just been concluded. 
England, a free, a protestant, a maritime kingdom, would, 
in her natural position, as a rival of France, and deeply 
concerned in the independence of the Netherlands, become a 
leading member of this confederacy. But the sinister attach- 
ments of the house of Stuart had long diverted her from her 
true interests, and rendered her councils disgracefully and 
treacherously subservient to those of Louis. It was therefore 
the main object of the prince of Orange to strengthen the 
alliance by the vigorous cooperation of this kingdom ; and 



302 JUSTICE OF THE REVOLUTION. Chap. XIV 

wilh no other view, the emperor, and even the pope, had 
abetted his undertaking. But it was impossible to imagine 
that James would have come with sincerity into measures so 
repugnant to his predilections and interests. What better 
could be expected than a recurrence of that false and hollow 
system which had betrayed Europe and dishonored England 
under Charles II.; or rather, would not the sense of injury 
and thraldom have inspired still more deadly aversion to the 
cause of those to whom he must have ascribed his humilia- 
tion ? There was as little reason to hope that he would 
abandon the long-cherished schemes of arbitrary power, and 
the sacred interests of his own faith. We must remember 
that, when the adherents or apologists of James II. have 
spoken of him as an unfortunately misguided prince, they 
have insinuated what neither the notorious history of those 
times, nor the more secret information since brought to light, 
will in any degree confirm.^ It was indeed a strange excuse 
for a king of such mature years, and so trained in tlie most 
diligent attention to business. That in some particular 
instances he acted under the influence of his confessor, Petre, 
is not unlikely ; but the general temper of his administration, 
his notions of government, the objects he had in view, wei'e 
perfectly his own, and were pursued rather in spite of mucji 
dissuasion and many warnings than through the suggestions 
of any treacherous counsellors.^, 

Both with respect tiierefore to the prince of Orange and 
to the English nation, James II. was to be considered as an 
enemy whose resentment could never be appeased, and whose 
power consequently must be wholly taken away. It is true 
that, if he had remained in England, it would have been 
extremely difficult to deprive him of the nominal sovereignty. 
But in this case, the prince of Orange must have been in- 
vested, by some course or other, with all its real attributes. 
He undoubtedly intended to remain in this country ; and 
could not otherwise have preserved that entire ascendency 
which was necessary for his ultimate purposes. The king 
could not have been permitted, with any common prudence, 
to retain the choice of his ministers, or the command of hia 
army, or his negative voice in laws, or even his personal 
liberty ; by which I mean that his guards must have been 
either Dutch, or at least appointed by the prince and parlia- 
ment. Less than this it would have been childish to require ; 



James II. CmCUMSTANCES FAVORING REVOLUTION. 303 

and this would not liave been endured by any man even of 
James's spirit, or by the nation when the reaction of loyalty 
should return, without continued efforts to get rid of an 
arrangement far more revolutionary and subversive of the 
established monarchy than the king's leposition. 

In the Revolution of 1688 there was an unusual combina- 
tion of favoring circumstances, and some of the Favorable 
most imporiant, such as the king's sudden tiight, circum- 
not within prior calculation, which renders it no tcnding'tho 
precedent for other times and occasions in point iievoiuUoa. 
of expediency, whatever it may be in point of justice. Re- 
sistance to tyranny by overt rebellion incurs not only the 
risks of failure, but those of national impoverishment and 
wnfusion, of vindictive retaliation, and such aggi-essions 
(perhaps inevitable) on private right and liberty as render 
the name of revolution and its adherents odious. Those, on 
the other hand, wlio call in a powerful neighbor to protect 
them from domestic oppression, may too often expect to 
realize the horse of the fable, and endure a subjection more 
severe, permanent, and ignominious^, than what they shake 
off. But the revolution effected by William III. united the i 
independent character of a national act with the regularity ' 
and the coercion of anarchy which belong to a military inva- 
sioo. The United Provinces were not such a foreign poten- i 
tate as could put in jeopardy the independence of England ; J 
nor could his army have maintained itself against the incli- 
nations of the kingdom, though it was sufficient to repress 
any turbulence that would naturally attend so extraordinary 
a crisis. Nothing was done by the multitude ; no new men, 
either soldiers or demagogues, had their talents brought for- 
vvard by this rapid and pacitic revolution ; it cost no blood, it ] 
violated no right, it was hardly to be traced in the course j 
of justice; the formal and exterior character of the monarchy.') 
remained nearly the same in so complete a regeneration oi'u 
its spirit. Few nations can hope to ascend up to the sphere 
of a just and honorable liberty, especially when long use has 
made the track of obedience familiar, and they have learned 
to move as it were only by the clank of the chain, with so 
little toil and hardship. We reason too exclusively from this 
peculiar instance of 1688 v.'hen we hail the fearful struggles 
of other revolutions with a sanguine and confident syrajjathy. 
Nor is the only error upon this side. For, as if the invct 



304 FAVORABLE CIRCUMSTANCES Chap. XI7 

erate and cankerous ills of a commonwealth could be extir- 
pated with no loss and suffering, we are often prone to 
abandon the popular cause in agitated nations with as much 
fickleness as wc embraced it, when we find that intemper- 
ance, irregularity, and confusion, from which great revolu- 
tions are \erj seldom exempt. These are indeed so much 
their usual attendants, the reaction of a self-deceived multi- 
tude is so probable a consequence, the general prospect of 
success in most cases so precarious, that wise and good men 
are more likely to hesitate too long than to rush forward too 
eagerly. Yet, " whatever be the cost of this noble liberty, 
we must be content to pay it to Heaven." ^ 

It is unnecessary even to mention those circumstances of 
this great event which are minutely known to almost all my 
readers. They were all eminently favorable in their effect 
to the regeneration of our constitution ; even one of tem- 
porary inconvenience, namely, the return of James to Lon- 
don, after his detention by the fishermen near Feversham. 
This, as Burnet has observed, and as is easily demonstrated 
by the writings of that time, gave a different color to the 
state of affairs, and raised up a party which did not before 
exist, or at least was too disheartened to show itself.^ His 
first desertion of the kingdom had disgusted every one, and 
might be construed into a voluntary cession. But his return 
to assume again the government put William under the neces- 
sity of using that intimidation which awakened the mistaken 
sympathy of a generous people. It made his subsequent 
flight, though certainly not what a man of" courage enough 
to give his better judgment free play would have chosen, 

1 Montesquieu. pitying James, if this feeling is kept un- 

2 Some short pamphlets, written at mingled with p.ny blame of those who 
this juncture to excite sympathy for the were the instruments of his misfortune 
king and disapprobation of the course It was highly expedient for the good of 
pursued with respect to him, are in the this couatry, because the rovolution- 
Somcrs Collection, vol. ix. But this settlement could not otherwise be at- 
forea put upon their sovereign first tained, to work ou James's sense of his 
wounded the consciences of Bancroft and deserted state by intimidation; and for 
the other bishops, who had hitherto done that purpose the order conveyed by three 
as much as in their station they well of his own subjects, perhaps with some 
could to ruin the liing's cause and par- rudeness of manner, to leave Whitehall, 
alyze his arms. Several modern writers was necessary. The drift of several ac- 
have endeavored to throw an interest counts of the Revolution that may be 
about James at the moment of his fall, read is to hold forth Mulgrave, Craven, 
either from a lurking predilection for all Arran, and Dundee to admiration, at th« 
legitimately crowned heads, or from a expense of William and of those who 
notion that it becomes a generous his- achieved the great consolidatior of £ng< 
torian to excite compassion for the un- Ijsh liberty. 

fortunate. There can. be no objection to 



. AMES II. ATTENDING THE REVOLUTION. 305 

appear excu-ablc and defensive. It brought out too glaring- 
ly, I mean for the satisfaction of prejudiced minds, the un- 
deniable fact, that the two houses of convention deposed and 
expelled their sovereign. Thus the great schism of the i 
Jacobites, though it must otherwise have existed, gained ita J 
chief strength ; and the revolution, to which at the outset a . 
coalition of whigs and tories had conspired, became, in its I 
final result, in the settlement of the crown upon William and 
Mary, almost entirely the work of the former party. ' 

But while the position of the new government was 
thus rendered less secure, by narrowing the basis of pub- 
lic opinion whereon it stood, the liberal principles of pol- 
icy which the whigs had espoused became incomparably 
more powerful, and were necessarily involved in the con- 
tinuance of the I'evolution-settlement. The ministers of 
William III. and of the house of Brunswick had no choice 
but to respect and countenance the doctrines of Locke, 
Hoadley, and Molesworth. The assertion of passive obedi-l 
ence to the crown grew obnoxious to the crown itself. ()ur\ 
new line of sovereigns scarcely ventured to hear of their 
hereditary right, and dreaded the cup of flattery that was 
drugged with poison. This was the greatest change thati 
affected our monarchy by the fall of the house of Stuart.l 
The laws were not so materially altered as the spirit and\ 
sentiments of the people. Hence those who look only at the ' 
former have been prone to underrate the magnitude of this 
revolution. The fundamental maxims of the constitution, 
both as they regard the king and the subject, may seem near- 
ly the same ; but the disposition with which they wei'e re- 
ceived and interpreted was entirely different. 

It was in this turn of feeling, in this change, if I may so 
say, of the heart, far more than in any positive j^^ ^^^^^ 
statutes and improvements of the law, that I con- Uryconse- 
sider the Revolution to have been eminently con- i"®"'^^^- 
ducive to our freedom and prosperity. Laws and statutes 
as remedial, nay, more closely limiting the prerogative than 
tlie bill of rights and act of settlement, might possibly have 
been obtained from James himself, as the price of his con- 
tinuance on the throne, or from his family as that of their 
restoration to it. But what the Revolution did for us wa3;ji 
this ; it broke a spell that had charmed the nation. It cut '" 
\ip by the roots all that theory of indefeasible right, cf par- j 



306 THE REVOLUTION: Chap. XIV 

amount prerogative, which had put the crown in continual 
opposition to the people. A contention hud now subsisted 
for five hundred years, but particularly during the last four 
reigns, against tJie aggressions of arbitrary power. The 
sovereigns of this country had never patiently endured the 
f*,ontrol of parliament ; nor was it natural for them to do so, 
whib the two houses of parliament appeared historically, 
and in legal language, to derive their existence as well as 
privileges from the crown itself. They had at their side the 
pliant lawyers, who held the prerogative to be uncontrollable 
by statutes, a doctrine of itself destructive to any scheme of 
reconciliation and compromise between the king and his sub- 
jects ; they had the churchmen, whose casuistry denied that 
the most intolerable tyranny could excuse resistance to a law- 
ful government. These two propositions could not obtain 
general acceptation without rendering all national liberty 
precarious. / 

It has been always reckoned among the most difficult prob- 
lems in the practical science of government to combine an 
hereditary monarchy with security of freedom, so that neither 
the ambition of kings shall undermine the people's rights, 
nor the jealousy ot the people overturn the throne. Eng- 
land had already experience of both these mischiefs. And 
there seemed no prospect before her, but either their alternate 
recurrence, or a final submission to absolute power, unless 
by one great efibrt she could put the monarchy forever be-^ 
neath the lav/, and reduce it to an integrant portion instead] 
of the primary source and principle of the constituiion. She 
must reverse the favored-^iaxim, " A Deo rex, a rege lex ; " 
and make the crown itself appear the creature of the law. 
But our ancient monarchy, strong in a possession of seven 
centuries, and in those high and paramount prerogatives 
which the consenting testimony of lawyers and tlie submis- 
sion of parliaments had recognized, a monarchy from which 
the house of commons and eveiy existing peer, though not 
perhaps the aristocratic order itself, derived its participation 
in the legislature, could not be bent to the republican theories 
which have been not very successfully attempted in some 
modern codes of constitution. It could not be held, without 
breaking uj) all the foundations of our polity, that the mon- 
archy emanated from the parliament, or, in any historical 
sense, from the people. But by the Revolution, and by the 



^AMEs II. ITS SALUTARY CONSEQUENCES. 307 

act of settlement, the riglits of the actual monarch, of theij 
reigning family, were made to emanate from the parliament '\ 
and the people. In technical language, in the grave and 
respectful theory of our constitution, the crown is still the 
fountain from which law and justice spring forth. Its prerog- 
atives are in the main the same as under the Tudors and the 
Stuarts ; but the right of the house of Brunswick to exer- 
cise them can only be deduced from the convention of 1G88 
The _gre at a dvantage therefore_of the Revolution, as 1 
would expTTcrtly^affirm^ consfsfsTn thai which was reckoned 
its reproach by many, and its misfortune by more — that it(j| 
broke the line of succession. No other remedy could have I 
been found, according to the temper and prejudices of those 
times, against the unceasing conspii'acy of power. But i 
w^hen the very tenui'e of power .was conditional, when the I 
crown, as we may say, gave recognizances for its good be- ' 
havior, wlien any violent and concerted aggressions on pub- 
lic liberty would have ruined those who could only resist an 
inveterate faction by the arms which liberty put in their 
hands, the several parts of the constitution w^ere kept in 
cohesion by a tie far stronger than statutes, that of a com- 
mon interest in its presei'vation. The attachment of James 
to popery, his infatuation, his obstinacy, his pusillanimity, 
nay even the death of the duke of Gloucester, the life of 
the prince of Wales, the extraordinary permanence and 
fidelity of his party, were all the destined means through 
which our pi-esent grandeur and liberty, our dignity of think- 
ing on matters of government, have been perfected. Those 
liberal tenets, which at the era of the Revolution were 
maintained but by one denomination of English party, and 
rather perhaps on authority of not very good precedents in 
our history than of sound general reasoning, became in the 
course of the next generation almost equally the creed of the 
other, whose long exclusion from government taught them to 
solicit tlie people's favor ; and by the time that Jacobitism 
was extinguished had passed into received maxims of Eng- 
lish politics. None at least would care to call them in ques- 
tion within the walls of parliament ; nor have their oppo- 
nents been of much credit in the paths of literature. Yet, as 
since the extinction of the house of Stuart's pretensions, and 
other events of the last half-century, we have seen those 
explodes' doctrines of indefeasible hereditary right revived 



308 



TKOCEEDINGS OF CONVENTION. CfiAP. XIV. 



under another name, and some have been willing to u.isrepre- 
seni the transactions oi' the Revolution and the act of settle- 
ment as if they did not absolutely amount to a deposition of 
the reigning sovereign, and an election of a new dynasty by 
the representatives of the nation in parliament, it may be 
proper to state precisely the several votes, and to point out 
the impossibility of reconciling them to any gentler con- 
struction. 

The lords spiritual and temporal, to the number of about 
ninety, and an assembly of all who had sat in 
of tbe con- any of king Charles's parliaments, with the lord 
vention. mayor and fifty of the common council, requested 
the prince of Orange to take upon him the administration 
after the king's second flight, and to issue writs for a con- 
vention in the usual manner.' This was on the 2Gth of 
December ; and the convention met on the 22d of January. 
Their first care was to address the prince to take the ad- 
ministration of affairs and disposal of the revenue into his 
hands, in order to give a kind of parliamentary sanction to 
the power he already exercised. On the 28th of January 
the commons, after a debate in which the friends of the late 
king made but a faint opposition,^ came to their great vote : 
T hat king Jame3JI.^h;aying endeavored to s ubyerttlie con- 
stitution oT t his k ingdom, by breaking~the ongmaTcon tract 
between kmg and people, and tjy tlie advice of Jesuits and 
other wtpke3"^erson3 having ~violate3^ the fundamental laws, 
and hartrrg~"WTtMrawn~~liimse rf out of the kingdom7~has 
abdicated -tfaB'^goverhment, and that the tbroiie' fs thereby 



t Pari. nist. V. 26. The former ad- 
dress on the king's first quitting London, 
signed by the peers and bishops, who met 
at Guildhall, Dec. ll, did not, in express 
terms, desire the prince of Orange to as- 
sume tlie government, or to call a parlia- 
ment, though it evidently tended to that 
result, censuring the king and extolling 
the prince's conduct. Id. 19. It was 
signed by the archbishop, his last pubhc 
act. Burnet has exposed himself to the 
lash of Ralph by stating this address of 
Dec. II incorrectly. [The prince issued 
two proclamations, Jan. 16 and 21, ad- 
dressed to the soldiers and sailors, on 
which Ralph comments in his usual in- 
vidious manner. They are certainly ex- 
pressed in a high tone of sovereignty, 
without the least allusion to the king, or 
to the request of the peers, and some 



phrases might give ofience to our lawyers. 
Ralph, ii. 10. —1W5.] 

2 [It appears by some notes of the 
debate in the convention, published in 
the Hardwicke Papers, ii. 401, that tha 
vote of abdication was carried with only 
three negatives. The tide ran too high 
for the tories, though some of them 
spoke ; they recovered their spirits after 
the lords' amendments. This account of 
the debate is remarkable, and clears xip 
much that is obscure in Grey, whom the 
Parliamentary History has copied. The 
declaration of right was drawn up rather 
hastily, sergeant Maynard, as well aa 
younger lawyers, pressing for no delay 
in filling the throne. I suppose that tha 
wish to screen themselves under the stat- 
ute of Henry VII. had something to do 
with this, which was also very expedient 
in itself. — 1845. ] 



JAMES 11. rROCEEDI^TGS OF CONTENTION. 309 

vacant. Tliey resolved unanimously the next day, T hat it 
hathT^eenJouiKl by expcricuce^in con^istent with the safely 
and wclta rol pt thlF'pr otcstanti ^iiigiloia to _be gover ned b y a 
po pish princ e.^ This vote was a reinarkal)le t niimph ol'_the 
w hig party, who had contended for the exclusion h\\\x and, 
on account of tliat endeavor to establish a principle which 
no one was now found to controvert, had been subjected to all 
the insults and reproaches of the opposite faction. The lords 
agreed Avith equal unanimity to this vote ; which, though it 
was expressed only as an abstract proposition, led by a prac- 
tical inference to the whole change that the whigs had in 
view. But upon the former resolution several important 
divisions took place. The first questionj)ut, in order to savf 
a nominal allegiance to the late king, was, whether_a_regen- 
cy, wiUi the administration of vegnl p pwer unde r the style 
of kin^y James ll. durm g the life otL the said king James, be 
the best and safest way to preserve the protestant religion 
and the laws of this kingdoip ? This was supported both 
by those peers who really meant to exclude tlie king from 
the enjoyment of power, such as Nottingham, its great pro- 
moter, and by those who, like Clarendon, were anxious for 
his return upon terms of security for their religion and lib- 
erty. Th e motiou„-Was lost by. fifl y-one. t/> fnyty-nine ; and 
this seems to have virtually decided, in the judgment of the 
house, that James had lost the throne.^ The lords t hen re- 
solve(Llh-atJh £r&-w"as-.aQ -QFiginal_-cojitract - between the king 
and the people, by fifty-five to Torty-six ; a position that 
seems rather too theoretical, yet necessary at that time, as 
denying tl ^e divine origin of monarchy, from which its ab- 
solute and indefeasible authority had been plausibly derived. 
..They concurred, without much debate, in the rest of the 
('ommons' vote, till they came to the clau.^e that he had ab- 
dicated the government, for which they substituted the word 
" deserted." They next omitted the final and most impor- 
tant clause, that the throne was thereby vacant, by a ma- 
jority of fifty-five to forty-one. This was owing to the party 
of lord Danby, who asserted a devolution of the crown on 
the princess of Orange. I t seemed to be tac itly understood 

1 Commons'' Journals ; Pari. Uis*. its Tacancy, should be filled by a kinR or 

2 Someivilie and several other writers a regent. Such a mode of putting the 
have not accurately stated the question, question would have been absurd. I ob- 
and suppose the lords to have debated serve that M. Mazure has been deceWeJ 
whether the throne, on the hypothesis of by these autliorities. 



310 PROCEEDINGS OF CONVENTION. Chap. XIV. 

by both sides that the infant child was to bo pr esum ed spuri - 
ousi TTiis at least '.vas a necessary supposition for the tories, J 
wliO'Sought in the idle rumors of the time an excuse for 
abandoning his right. As to the whigs, though they were 
active in discrediting this unfortunate boy's legitimacy, their 
own broad principles of changing the line of succession ren- 
dered it, in point of argument, a superfluous inquiry. The 
tories, who had made little resistance to the vote of abdi- 
cation, when it was proposed in the commons, recovered 
courage by this difference between the two houses ; and, 
perhaps by observing the king's party to be stronger out of 
doors than it had appeared to be, were able to muster 151 
voices against 282 in favor of agreeing with the lords in 
leaving out the clause about the vacancy of the throne.^^ 
There was still, however, a far greater preponderance of the 
whigs in one part of the convention than of the tories in the 
other. In the famous conference that ensued between com- 
mittees of the two houses upon these amendments, it was 
never pretended that the word "abdication" was used in its 
ordinary sense, for a voluntary resignation of the crown.^ 
The commons did not practise so pitiful a subterfuge. Nor 
could the lords explicitly maintain, whatever might be the 
wishes of their managers, that the king was not expelled and 
excluded as much by their own word " desertion " as by that 
which the lower house had employed. Their own previous 
vote against a regency was decisive upon this point.- But 
as abdication was a gentler term than forf eitur e, so desertl aa' 
ap£eare3~a_st]ll&SleFlne 

Their chief oTjJection, however, to the former word was that 
it led, or might seem to lead, to the vacancy of the throne, 
against which their principal arguments were directed. 
They contended that in our government there could be no 
i nterval or vacancy, the heir's right being complete by a 
demise of the crown ; so that it would at once render the 
monarchy elective, if any other person were designated to 
the succession. The commons did not deny that the present 
case was one of election, though they refused to allow that 

1 Pari. Hist. 01. The chief speakers ham, who had been solicitor-general to 

on this Bide were old sir Thomas tJlargea, Charles, but was removed iu the lata 

brother-in-law of general Monk, who had reign. 

been distinguished as an opponent of ad- '■ James is called " the late king" in 

ministration under Charles and Jamesi, a resolution of the lords on Feb. 2. 
and Mr. Finch, brother oi lord Netting 



i/AMKs n. PROCEEDINGS OF CONVENTION. 311 

the monarchy was thus rendered perpetually elective. They 
asked, supposing a right to descend upon the next heir, who 
was that heir to iniierit it? and gained one of their chief 
advantages by the difficulty of evading this question. It was 
indeed evident that, if the lords should carry their amend- 
ments, an inqui ry into^the legitimacy of the prince of 3^ ales 
could by no mean^ J)e dispensea withT Unless that could be 
disproved more satisfactorily than they had reason toliope, 
they^must come back to the inconveniences of a regency, 
with the pro.-^pect of bequeathing interminable coiiiu.sioiiJ,o. 
their posterity. For, if the descenda nts of Ja mes shou ljicon-' 
tinu e in t he Iloraan catholic rejigiorij^the nati on might be | 
placed in the ridiculous situation of acknow l edgin«; a dyn^is ty 
of^exUed JiijigSj jvliose_lawfuX prerogative would be withheld 
by anotjier race of _protestant regents. It was indeed strange 
to apply the provisional substitution of a regent in cases of 
infancy or imbecility of mind to a prince of mature age, and 
full capacity for the exei'cise of power. Upon the king's re- 
turn to England this delegated authority must cease of itself, 
unless supported by votes of parliament as violent and in- 
compatible with the regular constitution as his deprivation 
of the royal title, but far less secure ibr the subject, whom 
the statute of Henry VII. would shelter in paying obedience 
to a king de facto, while the fate of sir Henry Vane was an 
awful i)roof that no other name could give countenance to 
usurpation. A great part of the nation not thirty years 
before had been compelled by acts of parliament ^ to declare 
upon oatli their abhorrence of that traitorous position, that 
arms might be taken up by the king's authority against his 
person or those commissioned by him, through the influence 
of those very tories or loyalists wlio had now recourse to the 
identical distinction between the king's natural and political 
capacity, for which the presbyterians had incurred so many 
reproaches. 

In this conference, however, i f the whig s h ad every adv an- 
tagejoa_the_su]jiL ground s nf ,^e;^pediency, or rather political 
necessity, the tories \vere asinufih superior in the mere argu- 
ment, either as it regarded the common sense of words, or 
the principles of our constitutional law. Even sh ould we 
a dmit that an h ereditaryj king is competent to abdicate thfl 

1 13 Car. II. c. I.; 17 Car. H. c. ii. 
VOL. II. — c. 21 



312 PROCEEDINGS OF CONVENTION. Chap. ilT. 

throne in the name of all his posterity, this^couldonly be in- 
tcndedToTa voluntary and formal cession, not such a construc- 
tive abandonment of his right by misconduct as the commons 
had imagined. The ivor d " for feiture " might better have 
answered this purpose ; but it had seemed too great a vio- 
lence on principles which it was more convenient to under- 
mine than to assault. Noi- vvould^even Jorleiture_bear out 
by analogy the exclusion of an heir whose rig[it was^ not 
Hable^^o be set aside at the ancestor's pleasure. It was only 
by recurring to a kind of paramount, and what I may call 
hyper-constitutional law, a mixture of force and regard to 
the national good, which is the best sanction of what is done 
in revolutions, that the vote of the commons could be de- 
fended. They proceeded not by tlie sta ted ru les of thejyig- 
, lis h gover nment, but jhe g eneral j-ights of manlvind. They 
looked not so much to Magna Charta as the original compact 
of society, and rejected Coke and Hale for Hooker and Hai'« 
rington. 

The house_jj£Jm'ds, after this struggle against principles 
undoubtedly very novel in the discussions of parliament, gave 
way to the strength of circumstance and the steadiness of the 
commons. They reso lved not to insi ston their amendments 
to_the oi'igiiial vole"paTOl^fol lowed Jhls__up_Jby,A- r^aoJut ion, 
that the prince and princess of Orange sha ll b e declared Jung 
andj|ue en of England , and all the dominions thereunto be- 
longing.^ But the commons with a noble patriotism delayed 
to concur in this hasty settlement of the crown, till they 
should have completed the declaration of those fundamental 
rights and liberties for the sake of which alone they had gone 
tbrward with this great revolution.^ That dec laration, be ing 
at^nce im^expo^tioiL of the rnisg^overnment whi ch had com- 
pe lled them to dethrone the late kino;^ and of the conditions 
upojijwhich they elected his successors^vas^ incorporated in 



1 This was carried by sixty-two to passed against a regency, out of unwill- 

forty -Sevan, according to lord Clarendon; ingness to disagree witli the majority of 

several of the tories going over, and bis brethren ; but he was entirely of 

others who liad been hitherto absent Burnet's mind. The votes of the bishops 

eomhig down to vote. Forty peers pro- are not accurately stated in most books, 

tested, including twelve bishops out of which has induced me to mention them 

seventeen present. Trelawney, who had here. Lords" Journals, Feb. 6. 

voted against the regency, was one of '- It had been resolved, Jan. 29, that 

them, but not Compton, Lloyd of St. before the committee proceed to fill the 

Asaph, Crewe, Sprat, or Hall ; the three throne now vacant, they will proceed to 

former, I believe, being in the majority, secure our religion, law.«, and liberties. 
Lloyd had been absent when the vote 



Jasies II. 



ACCESSION OF WILLL\JVI AND MAKl 



313 



the final resolution to which both houses came on the 13th 
of February, extending the limitation of the crown as far 
as the state of affairs required: "That William and Mary, 
prince and princess of Orange, be, and be declared, 
king and queen of England, France, and Ireland, of w'iiiiam 
and the dominions thereunto belonging, to hold the '}"'^^}'^^^ '" 

. 11 1 '^® throDe. 

crown and dignity or the said kingdoms and do- 
minions to them, the said prince and princess, during their 
lives, and the life of the survivor of them ; and that the sole 
and full exercise of the regal power be only in, and executed 
by, the said prince of Oi'ange, in the names of the said prince 
and princess, during their joint Uvcs ; and after their decease 
the said crown and royal dignity of tiie said kingdoms and 
dominions to be to the heirs of the body of the said princess; 
for default of such issue, to the princess Anne of Denmark, 
and the heirs of her body ; and for default of such issue, to 
the heirs of the body of the said prince of Orange." 

Thus, to sum up the account of this extraordinary change 
in our established monarchy, the convention pronounced, un- 
der the slight disguise of a woi'd unusual in the language of 
English luwj that the a ctual sovereign had forfeited his righ t 
to_tlie natioiLS^ allegianc e. I^ swept away by the same vote 
t he rever sion of his poste rit y and of those Avho could claim 
the inh eritance of the crown . It declared that, during an in- 
terval_of nearly t wo months, there was no king of En gland ; 
the monarchy ly in g, as it were, in^ abeyance from the 23d of 
December to the 13th of February . It bestowed the crow^n 
on^VVjlharaijoiiUly_wiU^ h is wife ind eed, b ut so that her par - 
ticipation ^)f_the s overeignty should be only in nam e.^ It 



1 See Burnet's remarkable conversa- 
tion with Beatiuck, whereiu the former 
wxruily opposed the settlement of the 
crown on the prince of Orange alone, as 
Halifax had snggesti'd. But nothing 
in it is more remarkable than that the 
bishop doi'S not perceive that this was 
virtually done ; for it would be difficult 
to prove that Jliirj's royalty dilTered at 
all from tliat of a queen consort, except 
in having her name in the f'tyle. Slie 
was exactly in the Siime prcdicamei:t as 
Philip had been during his marriage 
with Mary I. Her admirable temi'er 
made her acquiesce in this exdu.-ion 
from power, wliich the sterner character 
of her husband demanded ; and wi'h re- 
rpect tn the o?nduct of the conveu'ion. 



it must be observed that the nation owed 
her no particular debt of gratitude, nor 
had she any better claim than her sister 
to fill a throne by election which hnd 
been declared vacant. In fact, there was 
no middle cource between what was done, 
aud following the precedent of Philip, as 
to which Beiitinck SJiid he fancied the 
prince would not like to be his wife's 
gentleman usher ; for a divided sover- 
eignty w.is a monstrous and impractical 
ble expedient in theory, however the sub- 
missive disposition of the queen might 
h.ive prevented its mischiefs. Buriict 
.•:eems to have had a puz/.led view of thb^ ; 
for he says aft<"rwar(i3, " It seemed to b« 
a double-bottomed monarchy, when 
there were two joint sovereigns ; bat 



314 CHANGE OF THE PREPONDERATING Chap. XIV. 

postponed the succession of the princess Anne during his life. 
La stly, it made no provision for any future dev olujion^oLthe 
crown in failu re of issue from th ose to whom jt was thus^lim 
ite^ TTe^v jg g ^^^^t to th e wis dom ^f fu ture parliaments. Yet 
only: eight years^ before, nay much less, a large part oLihe 
nation had loudly proclaimed tlie incompetOTicy of a full par- 
liamejit, with a lawful Rin^ at its head, to alter tjiejlineal 
course_of__succession. No whig had then openly professed 
the doctrine, that not only a king, but an entire royal family, 
might be set .aside for public convenience. The notion of 
an original contract was denounced as a republican chimera. 
The deposing of kings was branded as the worst birtii of 
popery and fanaticism. If other revolutions have been more 
extensive in their effect on the established government, few 
perhaps have displayed a more rapid transition of public 
Opinion. For it cannot, I thi nk, be reason ably do ubted jjiat 
the majori^ ^ of the nation w ent along with the vote of their 
representjttrves. Such was the ternunation of that contest 
whicli^ the house of Stuart had obstinately maTntained against 
thejiberties^and^of l ate agai nst thej:eIIgion, of Englaad ; or 
rather, o f that far jnore anciei ^t con troversy between the 
crown and the people which had neyen-befin^wliQlly at rest 
since^ie reign_ofJohn. During this long period, the bal- 
ance, except in a few irregular intervals, had been swayed 
in favor of the ci'own ; and though the government of Eng- 
land was always a monarchy limited by law, though it al- 
ways, or at least since the admission of the commons into 
the legislature, partook of the three simple forms, yet the 
character of a monarchy was evidently prevalent over the 
other parts of the constitution. But, s ince the Revolution o f 
1688i and par ticularly from then ce to the d eath of Geor ge 
rTTafter which the pop ular eleme nt^rew m uch strongcr ^t 
seems equally Just to s ay t hat the pred o minating chaiacter 
ha gHjeen aristocrat icaL; the prerogative being in som e^-e- 
spects^too l imit ed, and in other s too littl e capable of ef fectual 

those who know the queen's temper and plausible grounds, on Mary's death, that 

principles had no apprehensions of di- the parliament was dissolved by that 

vided counsels or of a distracted govern- event, the writs having been Lssued in 

ment." Vol. ii. p. 2. The convention her name as well as the king'.s. A paper 

had not trusted to the queen's temper printed, but privately handed about, 

and principles. It required a distinct with the design to prove tbis, will be 

act of parliament (2 W. & M. c. 6) to found in Pari. Hist. v. 867. But it waa 

enable her to exercise the regal powc.-r not warmly taken up by any party.— 

during the king's absence from England. 1845.] 
[It waa urged by some, not without 



^AMEsn ELEMENT OF THE CONSTITUTION. 315 

exerdse, to coun te rbala nce the hereditary peerage, and that 
class of great territorial proprietors who, in a political divis- 
ion, are to be reckoned among the proper aristocracy of the 
kingdom. This, however, will be more fully explained in 
the two succeeding chapters. 



81G CHARACTER OF THE REVOLUTION. Chap. XV 



CHAPTER XV. 



ON THE REIGN OP WILLIAM IH. 

Declaration of Rights — Bill of Rights — Military Force without OoTisent declared 
illegal — Discontent with the new Government — Its Causes — Incompatibility 
of the Revolution with received Principles — Character and terrors of William — 
Jealousy of the Whigs — Bill of Indemnity — Bill for restoring Corporations — 
Settlement of the Revenue — Appropriation of Supplies — Dissatisfaction of the 
King — No Republican Party in Kxistence — William employs Tories in Mip- 
istry — Intrigues with the late King — Schemes for his Restoration — Attainder 
of Sir John K'-'Mwick — 111 Success of the War — Its Expenses — Treaty of Rys- 
wick — Jealous} of the Commons — Army reduced — Irish Forfeitures resumed 
— Parliamentary Inquiries — Treaties of Partition — Improvements in Constitu- 
tion under William — Bill for Triennial Parliaments — Law of Treason — Statute 
of Edward III. — Its constructive Interpretation — Statute of William III. — 
Liberty of the Press — Law of Libel — Religious Toleration — Attempt at Com- 
prehension — Schism of the Nonjurors — Laws against Roman Catholics — Act 
of Settlement — Limitations of Prerogative contained in it — Privy Council super- 
seded by a Cabinet — E.tclu.sion of I'lacemen and Pensioners from Parliament — 
Independence of Judges — Oath of Abjuration. 

The Revolution is not to be considered as a mere effort 
of the nation f)n a pressing emergency to rescue itself from 
the violence of a particular monarch ; much less as grounded 
upon the danger of the Anglican church, its emoluments, and 
dignities, from the bigotry of a hostile religion. It was 
rather the triumph of those principles which, in the language 
of the present day, are denominated liberal or constitutional, 
over those of absolute monarchy, or of monarchy not effectu- 
ally controlled by stated boundaries. It was the termination 
of a contest between the regal power and that of parliament, 
which could not have been brought to so favorable an issue 
by any other means. But, while the chief renovation in the 
spirit of our government was likely to spring from breaking 
the line of succession, while no positive enactments would 
have sufficed to give security to freedom with the legitimate 
race of Stuart on the throne, it would have been most cul- 
pable, and even preposterous, to permit this occasion to pass 
by without asserting and defining those rights and libei-ties 
which the very indeterminate nature of the king's preroga- 
tive at common law, as well as the unequivocal extension it 
had lately received, must continually place in jeopardy. The 



Will III DECLARATION OF KIGUTS. 317 

liousf? of lords, iiideetl, as I luive observed in the last chapter 
would have conferred the crown on William and Mary, leav- 
ing the redre-s of grievances to future arrangement; and .-ome 
eminent lawyers in the commons, INIaynard and Pollexfen, 
seem to have had apprehensions of keei)ing the nation too 
long in a state of anarchy.^ But the great majority of the 
connnons wisely resolved to go at once to the root of the na- 
tion's grievances, and show their new sovereign that he was 
raised to the throne for the sake of those liberties by violating 
which his predecessor had forfeited it. 

The declaration of rights presented to the prince of Orange 
by the marquis of Halil'ax, as speaker of the lords. Declaration 
in the presence of both houses, on the 18th of Feb- of "ghu. 
ruary, consists of three parts : a recital of the illegal and 
arbitrary acts connnitted by the late king, and of their conse- 
quent vote of abdication ; a declaration, nearly following the 
words of the former part, that such enumerated acts are 
illegal ; and a resolution that the throne shall be tilled by the 
prince and princess of Orange, according to the limitations 
mentioned in the last chapter. Thus the declaration of rights 
was indissolubly coimected with the revolution-settlement, as 
its motive and its condition. 

The lords and commons in this instrument declare : That 
the pretended power of suspending laws, and the execution 
of laws, by regal authority without consent of parliament, is 
illegal ; That the pretended power of dispensing with laws 
by regal authority, as it hath been assumed and exercised of 
late, is ilkigal ; That the commission for creating the late 
court of commissioners for ecclesiastical causes, and all other 
commissions and courts of the like nature, are illegal and 
pernicious ; That levying of money for or to the use of 
the crown, by pretence of prerogative without grant of 
parliament, for longer time or in any other manner than 
the same is or shall be granted, is illegal ; That it is the 
right of the sulijects to petition the king, and that all com- 
mitments or prosecutions tor such petitions are illegal ; That 
the raising or keeping a standing army within the kingdom in 
time of peace, unless it be with consent of parliament, is 
illegal ; That the subjects which are i>rolestants may have 
arms for their defence suitable to thmr condition, and as 
allowed by law ; That elections of members of parliament 

1 Pari. mat. v. 64. 



318 BILL OF RIGHTS. Chap. XV 

ought to be free ; That the freedom of speech or debates, or 
proceedings in parliament, ought not to be impeached or 
questioned in any court or place out of parliament ; That ex. 
cessive bail ought not to be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted; That 
juries ought to be duly impanelled and returned, and that 
jurors which pass upon men in trials of high-treason ought 
to be freeholders ; That all grants and pi'omises of fines and 
forfeitures of particular persons, before conviction, are illegal 
and void ; And that, for redress of all grievances, and lor 
the amending, strengthening, and preserving of the laws, 
parliaments ought to be held frequently.^ 

This declaration was, some months afterwards, confirmed 
by a regular act of the legislature in the bill of 
BUI of rights. j.jg|^tg^ ^^,1jJ(.1j establishes at the same time the 
limitation of the crown according to the vote of both houses, 
and adds the important provision, that all persons who shall 
hold communion with the church of Rome, or shall marry a 
papist, shall be excluded, and forever incapable to possess, 
inherit, or enjoy, the crown and government of this realm ; 
and in all such cases the people of these I'ealms shall be 
absolved from their allegiance, and the crown shall descend 
to the next heir. This was as near an approach to a gen- 
eralization of the principle of resistance as could be admitted 
with any security for public order. 

The bill of rights contained only one clause extending 
rather beyond the propositions laid down in the declaration. 
This relates to the dispensing power, which the lords had 
been unwilling absolutely to condemn. They softened the 
general assertion of its illegality sent up from the other 
house, by inserting the words •' as it has been exercised of 
late." ^ In the bill of rights therefore a clause was intro- 
duced, that no dispensation by non obstante to any statute 
«5hould be allowed, except in such cases as should be specially 
provided for by a bill to be passed during the present session. 
This reservation went to satisfy the scruples of the lords, who 
did not agree without difficulty to the complete abolition of 
a prerogative so long recognized, and in many cases so con- 
venient.** But the palpable danger of permitting it to exisl 
in its indefinite state, subject to the interpretation of time- 

> Pari. Hist. v. 108. » Pari. nUt. 345 

i Journals, Hth and 12lh Feb. 1688-9. 



Will. III. ILLEGALITY OF STANDING ARMY. 319 

serving judges, prevailed with the commons over this consid- 
aratioa of conveniency ; and though in the next parliament 
the judges were ordered by the house of lords to draw a bill 
for the king's dispensing in such cases wherein they should 
find it necessary, and for abrogating such laws as had been 
usually dispensed with and were become useless, the subject 
seems to have received no further attention.^ 

Except in this article of the dispensing prerogative, we 
cannot say, on comparing the bill of rights with what is 
proved to be the law by statutes, or generally esteemed to be 
such on the authority of our best writers, that it took away 
any legal power of the crown, or enlarged the limits of popu- 
lar and i)arliamentary pri\ilege. The most questionable 
proposition, though at the same time one of the 
most important, was that which asserts the ille- 5"'''''*T,. 

,..,., T . . ,. , force with- 

gality ot a standmg army in tune ot peace, unless out consent 
with consent of parliament. It seems ditficult to ^g^^,'^ 
perceive in what respect this infringed on any pri- 
vate man's right, or by what clear reason (for no statute 
could be pretended) the king was debarred from enlistin" 
soldiers by voluntary contract for the defence of his domin- 
ions, especially after an express law had declared (he sole 
power over the militia, without giving any definition of that 
word, to reside in the crown. This had never been expressly 
maintained by Charles II.'s parliaments ; though the general 
repugnance of the nation to what was certainly an innovation 
might have provoked a body of men who did not always meas- 
ure their words to declare its illegality.^ It was however at 

1 Lords' Journals, 22d Nov. 16S9. 1GG7, on the insult offered to the coast* 

[Pardons for murder used to be granted by the Dutch Beet, a great panic arising, 

with a "non obstautibus statutis.' After 12,000 fresh troops were hiistily levied, 

the Uevolution it was contended that they The commons, on July 25, came to an 

were no longer legal: 1 Shower, 284. unanimous resolution, that his majesty 

But Holt held "the power of pardoning be humbly desired by such members as 

all olfences to be an inseparable incident are hisprivy council, that, when a peace 

ot the crown and its royal power." This Ls concluded, the new-r.iised forces be 

stivors a little of old tory times. For disbanded. The king, four days after, in 

there are certainly unrepealed st:itute8 of a speech to both houses, said, " he won- 

Edward lU. which materially limit the dered what one thing he had done since 

crown's prerogative of pardoning felonies, his coming into England to persuade any 

— 1845.] sober person that he did intend to govern 

- The guards retained out of the old by a standing army ; he said ho was more 

army disbanded at the king's return have an Englishman than to do so. He desired, 

been already mentioned to have amounted for as much as concerni-d him, to preserve 

to about 5f)00 men, though some a,ssert the laws," &c. I'arl. Hist. iv. 333. Next 

their number at first to have been con- session the two' houses thanked him for 

Biderably less. No objection .seems to having disbanded the late raised forces, 

liave been made at the time to the con- Id. 359. But in 1673, during the second 

tiuuance of these regiments But iu Dutch war, a considerable force haying 



320 



ILLEGALITY OF STANDING ARMY. 



Chap. XV 



least unconstitutional, by which, as distinguished from illegal, 
I mean a novelty of much importance, tending to endanger 
the established laws. And it is manifest that the king could 
never inflict penalties by martial law, or generally by any 
other course, on his troops, nor quarter them on the inhabi- 
tants, nor cause them to interfere with the civil authorities ; so 
that, even if the proposition so absolutely expressed may be 
somewhat too wide, it still should be considered as virtually 
correct.^ But its distinct assertion in the bill of rights put a 



been levied, the house of commons, after 
a Wiirni dcl>;ite, resolved, Nov. 3, that a 
standing aiujy was a grievance. Jd. 
604. And ill February follouiiig. that 
the continuing of any standing force.s in 
thi.s nation, oiher than the militia, is a 
great grievance and vexation to the 
people; and that tlii.s house do humbly 
petition his ni.iji'.sty to cause immediately 
to be disbanded th:it part of tlu-m that 
were rai.-^ed since Jan. 1, 16(J3. Id. GGo. 
This was done not long afterwards ; but 
early in 1078, on the prete.\t of entering 
into a war with France, he suddenly 
raised an army of 20,000 men, or more, 
according to some accounts, which gave 
so much alarm to the parliament, that 
they would only vote supplies on con- 
dition that the.«e troops sliould be imme- 
diately disbanded. Id. 985. The king, 
however, employed the money without 
doing so, and maintained, in the next 
session, that it had been necessary to 
keep them on foot; intimating, at the 
same time, that he was now willing to 
comply, if the hou.se thought it expe- 
dient to disband the troops, which they 
accordingly voted with unanimity to be 
neces.sary for the safety of his majesty's 
person and preservation of the peace of 
the government. Nov. 25. Id. 1049. 
James showed, in his speech to parlia- 
ment, Nov. 3, 1685, that he intended to 
keep on foot a standing army. id. 1371. 
But, though that house of commons was 
very differently composed from those in 
his brother's reign, and voted as large 
a supply as the liing required, they re- 
solved that a bill be brought in to render 
the miliMa moreu.seful; an oblique and 
timid liint of their disapprobation of a 
regular force, against which several mem- 
bers had spoken. 

1 do not find that any one, even in de- 
bate, goes the length of denying that the 
king might by his prerogative maintain 
a regular army ; none, at least, of the 
resolutions in the commons can be said 
to have that effect. 

1 It is expressly against the petition of 
right to quarter troops on the citizens, or 



to inflict any punishment by martial la'iv. 
No court-martial, in fact, can have any 
coercive jurisdiction e.-jcept by statute; 
unless we should resort to the old tribu- 
nal of the constable and marshal. And 
that this was admitted, even in bad times, 
we may learn by an oddca.se in sir Thomas 
Jones s Reports, 147. (I'asch. 83 Car. 2, 
1681.) An action was brought for assault 
and false imprisonment. The defendant 
pleaded that he was lieutenant-governor 
of the isle of Picily, and that the plaintifl 
was a soldier belonging to the garrison ; 
and th.'it it was the aucient custom of the 
castle that, if any .soldier refused to render 
obedience, the governor might puuLsh 
him by imprisonment for a rea.sonable 
time, which he had therefore done. The 
plaintiff demurred, and had judgment in 
his lavor. By demurring, he put it to 
the court to determine whether this plea, 
which is obviously fabricated in order to 
cover the want of any gener.il right to 
maintain discipline in this manner, were 
valid in point of law; which they decided, 
as it appears, in the negative. 

In tne next reign, however, an attempt 
was made to punish deserters capitally, 
not by a court-martial, but on the au- 
thority of an ancient act of pailiauient. 
Chief-justice Herbert is said to have 
resigned his place in the king's bench 
ratuer than come in to this. W right suc^- 
ceeded him ; and two deserters, h.aving 
been convicted, were executed in London 
Kalph, 961. I cannot discover that there 
was anything illegal in the proceeding, 
and therefore question a little whetlier 
this were really Herbert's motive. See 3 
Inst. 96. 

[1 have since observed, in a passage 
which had escaped me, that the cause of 
sir Kdward Herbert's resignation, which 
was in fact no resignation, but ordy an 
exchange of places with Wright, chief- 
justice of the common pleas, was hia 
objection to the king's insisting on the 
execution of one of these deserters at 
Plymouth, the conviction having occur- 
red at Heading. State Ti'ials, xii. 262, from 
Hey woods Vindication of Fox.. — 1846. j 



Will. III. DISCONTENT WITH NEW GOVERNMENT. 321 

most essential restraint on the monarchy, and rendered it in 
effect forever impossible to employ any direct force or intim- 
idation against the established laws and liberties of the ])eo|)le. 
A revolution so thoroughly remedial, and accomplished 
with so little cost of i)rivatc suffering, so little of _ . ^ 
angry punishment or oppression of the vanquislied, with the 
ought to have been hailed with unbounded thank- jjfj^tf '"''™' 
fulness and satisfaction. The nation's deliverer 
and chosen sovereign, in himself the most magnanimous and 
heroic character of that age, might have expected no return 
but admiration and gratitude. Yet this was very far from 
being the case. In no period of time under the Stuarts were 
public discontent and ojiposition of parliament more promi- 
nent than in the reign of AVilham III. ; and that high-souled 
prince enjoyed far less of his subjects' affection than Charles 
II. 2so part of our history perhaps is i-ead upon the whole with 
less satisfaction than these thirteen years during which he sat 
upon his elective throne. It will be sufficient for me to 
sketch jrenerally the leading causes, and the errors 

^ "^ ^ , . - , Its caus6S. 

both of the prince and people, which hindered the 
blessings of the Revolution from being duly appreciated by 
its contemporaries. 

The votes of the two houses, that James had abdicated, or 
in plainer words forfeited, his royal authority, that the crown 
was vacant, that one out of the regular line of suc- 
cession should be raised to it, were so untenable biiu'yTf'the 
by any known law, so re})ugnant to the principles itpoiution 
of the established church, tiuit a nation accustomed pnucipies. 
to think upon maLters of government only as law- ' 

yers and churchmen dictated could not easily reconcile them 
to its preconceived notions of duty. The lirst burst of re- 
sentment against the late king was mitigated by his fall ; 
compassion, and even confidence, began to take place of it ; 
his adherents — some denying or extenuating the faults of 
his administration, others more artfully representing them as 
capable of redress by legal raetisures — having recovered 
from their consternation, took advantage of the necessary 
delay before the meeting of the convention, and of the time 
consumed in its debates, to publish pamphlets and circulate 
riuuors in his behalf.^ Thus, at the moment when William 

I See scvera' in the Somers Tracts, vol. of the Conyention, by Dr. Sherlock, if 
X. (Jo» of tbeie, a Letter to a Member very ably written, auU putu all the coo- 



322 REVOLUTION OPPOSED TO PRINCIPLES. Chap. X 7 

and Mary were proclaimed (though it peems highly proba- 
ble that a majority of the kingdom sustained the bold votes 
of its representatives), there was yet a very powerful minority 
who believed the constitution to be most violently shaken, if 
not irretrievably destroyed, and the rightful sovereign to have 
been excluded by usurpation. The clei'gy were moved by 
pride and shame, by the just apprehension that their influence 
over the people would be impaired, by jealousy or hatred of 
the nonconformists, to deprecate so practical a confutation of 
the doctrines they had preached, especially when an oatli 
of allegiance to their new sovereign came to be imposed ; 
and they had no alternative but to resign their benefices, or 
wound their reputations and consciences by submission upon 
some casuistical pretext.^ Eight bishops, including the pri- 
mate and several of those who had been foremost in the de- 
fence of the church during the late reign, with about four 
hundred clergy, some of them highly distinguished, chose the 
more honorable course of refusing the new oaths ; and thus 
began the schism of the nonjurors, more mischievous in its 
commencement than its continuance, and not so dangerous to 
the government of William III. and George I. as the false 
submission of less sincere men.'^ 

sequences of a change of government, as conscientious, and several of whom had 
to populiir dissatisfaction, &c., much as very recently sustained so conspicuously 
they turned out, thougli, of course, fail- the brunt of the battle against king 
Ing to show that a treaty with the king James, was very painful; and motives of 
would be loss open to objection. Sher- policy, as well as generosity, were not 
lock declined for a time to take the oaths; wanting in favor of some indulgence tow- 
but, conipljing afterwards, and writing ards them. On tlie other hand, it was 
in vindication, or at least excuse, of the dangerous to admit sucli a reflection on 
Revolution, incurred tUe hostility of the tUe new settlement as would be cast by 
.lacobites, and iinp:iired his own reputa- its enemies, if the clergy, especially the 
tion by so interested a want of consis- bishops, should be excused from the oath 
tency ; for he had been the most eminent of allegiance. The house of lords made 
champion of passive obedience. Even an amendment in tlie act requiring this 
the distinction he found out, of the law- oath, dispensing with it in the case of 
fulness of allegiance to a king de facto, ecclesiastical persons, unless they should 
was contrary to his former doctrine, be called upon by the privy council. 
[A pamphlet, entitled " A Second Letter This, it was thought, would furnish a 
to a Friend," in answer to the declaration security for their peaceable demeanor 
of .lames II. in 1692 (Somers Tracts, x. without shocking the people and occa- 
678), which goes wholly on Revolution sioning a dangerous schism. But the 
principles, is attributed to Sherlock by commons resolutely opposed this aniend- 
Scott, who prints the title as if Sherlock's nient, as an unfair distinction, and de- 
name were in it, probably following the rogatory to the king's title. Pari. Hist, 
former iKlition of the Somers Tracts. But 218. Lords' Journals, 17th April, 1689. 
I do not find it a.scribed to Sherlock in The clergy, however, had six months 
the Biographia Britannica, or in the list more time allowed them, in order to 
of his writings in Watt's Bibliotheca. — take the oath, than the possessors of laj 
1845.] offices. 

• 1 \V. & M. c. 8 Upon the whole, I think the reasons 

* The necessity of excluding men so for deprivation greatly preponderated. 



Wiix. III. CHARACTER AND ERRORS OF WILLIAM. 823 

It seem.s undeniable that the strength of this Jacobit* fac- 
tion sprung from the want of apparent necessity for the change 
of government. Extreme oppression produces an impetuous 
tide of resistance, which bears away the reasonings of tlie casu- 
ists. But the encroachments of James IL, being rather feU in 
prospect tlian much actual injury, left men in a calmer tem- 
per, and disposed to weigh somewhat nicely the nature of the 
proposed remedy. The Revolution was, or at least seemed 
to be, a case of political expediency ; and expediency is al- 
ways a matter of uncertain argument. In many resp(!ct3 it 
was far better conducted, more peaceably, more moderately, 
witli less passion and severity towards the guilty, with less 
mixture of democratic turbulence, with less innovation on 
the regular laws, than if it had been that extreme case of ne- 
cessity which some arc apt to require. But it was obtained 
on this account with less unanimity and heartfelt concurrence 
of the entire nation. 

The tlemeanor of William, always cold and sometimes 
harsh, his foreign origin (a sort of crime in Eng- ^ihamcter 
lish eyes) and foreign favorites, the natural and and errors 
almost laudable prejudice against one who had °^ ^^i^'^'"- 
risen by the misfortunes of a very near relation, conspired 
with a desire of power not very judiciously displayed by him 
to keep alive this di-affection ; and the opposite party, re- 
gardless of all the decencies of political lying, took care to 
aggravate it by the vilest calumnies against one who, though 
not exempt from errors, must be accounted the greatest man 

Public pra3er9 for the king by name form prired bishops, thougli many of them 
part of our litur;^y; and it was surely throiij;h their late behavior were de- 
inipo.'<si;)le to dispense with tlie clergy's servedly esteemed, cannot be reckoned 
readini; tlieui, which was as obnoxious anionj; the eminent characters of our 
as the o:itli of allegiance. Thus the ben- church for learninR or capacity. San- 
eflceJ priests must have been excluded ; croft the most di-stinguisiied of them, 
and it was liardly required to make an had not made any remarkable figure ; 
exception for the sake of a. few bishops, and none of the rest had any preten- 
even if difficulties of the same kind would sions to literary credit. Those who filled 
not have occurred in the exercise of their their places were incomparably superior, 
jurisdiction, which hangs upon, and has Among the nonjuring clergy a certain 
a perp<;tual reference to, the supremacy number were considerable men; but, 
of the crown. upon the whole, the well-alTected part of 
The king was empowered to reserve a the church, not only at the Kcvolution, 
third part of the value of their benefices but for fifty years afterwards, cout.ained 
to any twelve of the recusant clergy, by far its most useful and able members. 
1 W. & M.c. 8, 8. 10. Hut this could Yet the effect of this- expulsion w.as high- 
only be done at the expense of their sue- ly unfavorable to the new govertunent ; 
ce.«.sors : and the behavior of the nonju- and it required all the influence of a 
rors, who strained every nerve in favor latitudinarian school of divinity, led by 
of the dethroned king, did not recom- Locke, which was very strong among th« 
caend them to the government. The de- laity under William, to couut<.'racC it 



324 JE^iLOUSY OF THE WHIGS. Chap. XV 

of his own age. It is certain that his government was in 
very considerable danger for three or four years after the 
Revolution, and even to the peace of Ryswick. The change 
appeared so marvellous, and contrary to the bent of men's 
expectation, that it could not be permanent. Hence he was 
surrounded by the timid and (he treacherous ; by those who 
meant to have merits to plead after a restoration, and tiiose 
who meant at least to be secure. A new and revohitionary 
government is seldom fairly dealt with. Mankind, accUiJ- 
tomed Jo forgive almost everything in favor of legitimate pre- 
scriptive power, exact an ideal faultlessness from that which 
claims allegiance on the score of its utility. The personal 
failings of its rulers, the negligences of their administration, 
even the inevitable privations and diiliculties which the na- 
ture of human affairs or tlie misconduct of their predeces- 
sors create, are imputed to them with invidious minuteness. 
Those who deem their own merit unrewarded become always 
a numerous and implacable class of advei'saries ; those whose 
schemes of public improvement have not been followed think 
nothing gained by the change, and return to a restless cen- 
soriousnesr, in which they have been accustomed to place 
deliglit. With all these it was natural that William should 
have to contend; but we cannot in justice impute all the 
unpopuhirity of his administration to tbe disaffection of one 
party, or the fickleness and ingratitude of another. It arose 
in no slight degree from errors of his own. 

The king had been raised to the throne by the vigor and 
Jealousy of zeal of the whigs; but the opposite party were so 
the Whigs. nearly upon an equality in both houses that it would 
have been difficult to frame his government on an exclusive 
basis. It would also have been highly impolitic, and, with 
respect to some few persons, ungrateful, to put a slight upon 
those who had an undeniable majority in the most powerful 
classes. William acted, therefore, on a wise and liberal prin- 
ciple, in bestowing offices of trust on lord Danby, so mer- 
itorious in the Revolution, and on lord Nottingham, whose 
probity was unimpcached ; while he gave the whigs, as was 
due, a decided preponderance in his council. Many of them, 
however, with. that indiscriminating acrimony which belongs 
to all factions, could not endure the elevation of men who 
had complied with the court too long, and seemed by their 
tardy opposition'^ to be rather the patriots of the church than 

1 Burnet. Ralph, 174, 179. 



Will. in. BILL OF INDEMNITY. 325 

of civil liberty. They remembered that Danby had been im- 
peached as a corrupt and dangerous minister ; that Halifax 
had been involved, at least by holding a confidenlial olfice al 
the time, in the last and worst part of Charle>'s reign. They 
saw Godolpliin, wiio had conciiiTed in the commituient of the 
bishops, and every other !neasni-e of the lale king, still in the 
treasury; and, though they could not reproach Nottingham 
with any misconduct, were sliocked that his conspic-uous op- 
position to the new settlement should be rewarded with Uio 
post of secretary of state. Tlie mismanagement of affairs in 
Ireland during 1G89, which was very glaring, furnished spe- 
cious grounds for suspicion that the king was betrayed.^ It 
is probable that he was so, though not at that time by the 
chiefs of his ministry. This was the beginning of that dis- 
satisfaction with the government of William, on the part of 
tiiose who had the most zeal for his throne, which eventually 
became far more haiassing than the conspiracies of, his real 
enemies. Halifax gave way to tiie prejudices of the com- 
mons, and retired from power. These prejudices were no 
doubt unjust, as they respected a man so sound in principle, 
though not uniform in conduct, and who had withstood tlie 
arbitrary maxims of Charles and James in that cabinet of 
which he unfortunately continued too long a member. But 
his fall is a warning to English statesmen that they will be 
deemed responsible to their country for measures which they 
countenance by remaining in ofhce, though they may resist 
them in councih 

The same honest warmth which impelled the whigs to 
murmur at the employment of men sullied by their Bin of 
compliance with the court, made them unwilling "nJ^mnify- 
to concur in the king's desire of a total amnesty. They re- 
tained the bill of indemnity in the commons ; and, excepting 
some by name, and many more by general clauses, gave their 
adversaries a pretext for alai'ming all those whose conduct 
had not been irrci)roachable. Clemency is indeed for the 

1 The parliamentary dcbatx!s are full The star of the house of Stuart grew pale 

of compl:iint3 as to the njisnianagement forever on that illustrious diiy when 

of all things in Ireland. These might James displayed again the pusillanimity 

bethought hiusty or factious; but mar- which had cost him his English crown, 

shal Schoniberg's letters to the king yield Yet the best friends of William dissuaded 

them Btroug confirmation. Dalrymple, him from going into Ireland, so imnii- 

Appendix, '26, &c. William's resolution nont did the peril appear at home. Dal- 

to take the Irish war on hiin.self saved rymple, id. 97. " Thi igs," .«ays Burnet, 

not only that country, but England. Our " were in ii very ill disiiosition towards o 

>wu coustitutiou was won on the Boyne. fatal turn." 



326 



BILL OF INDEMNITY. 



Chap. XV, 



most part the Avisest, as well as the most generous, j)olicj ; 
yet it might seem dangerous to pass over with unlimited for- 
giveness that servile obedience to arbitrary power, especially 
in the judges, which, as it springs from a base motive, is best 
controlled by the fear of punishment. But some of the late 
king's instruments had fled with him, others were lost and 
ruined ; it was better to follow the precedents set at the 
Restoration than to give them a chance of regaining public 
sympathy by a prosecution out of the regular course of law.^ 
In one instance, the expulsion of sir Robert Sawyer from the 
houi^e, the majority displayed a just resentment against one 
of the most devoted adherents of the prerogative, so long as 
civil liberty alone was in danger. Sawyer had been lattei'ly 
very conspicuous in defence of the church ; and it was expe- 
dient to let the nation see that the days of Cliarles II. were 
not entirely forgotten." Nothing was concluded as to the in- 
demnity in this parliament; but in the next, William took 



1 See the debates on this subject ia 
the Piirliamentary llistory, which is a 
transcript from Anchitcl Grey. The 
whigs, or at least some liot-heaUed men 
ainoiig them, were certainly too much 
actuated by a vindictive spirit, and con- 
sumed too much time on this necessary 
bill. 

2 The prominent instance of Sawjcr's 
delinquency, which caut^ed his expul.sion, 
was his refusal of a writ of error to sir 
Thomas Armstrong. I'arl. Uist. 516. It 
was notorious that Armstrong sutfered by 
a legal murder ; and an attorjiey -general 
in such a c;u«e could not be reckoned as 
free from personal respon.sibility as an 
ordinary advocate who maintains a cause 
for his fee. The first resolution had been 
to give reparation out of the estates of 
the judges and prosecutors to Armstrong's 
family, which was, perhaps rightly, aban- 
fioncd. 

The house of lords, who, having a 
power to examine upon oath, are sup- 
posed to sift the truth in such inquiries 
better tban the commons, were not remiss 
in endeavoring to bring the instruments 
of Stuart tyranny to justice. Uesides the 
committee appointed on the very second 
day of the convention. 23d Jan. 1(589, to 
investigate tbe supposed circumstances of 
s'lspicion ;is to tbe death of lord Essex 
^a committee renewed afterwards, and 
formed of persons by no means likely to 
have abandoned any path tbat miglit lead 
to the detection of guilt in the late king), 
another was appointed in the second .ses- 
fion of the same parliament (Lords' Jour- 
nals, 2d Nov. 1689), •' to consider who 



were the advisers and prosecutors of the 
murUi-rs of lord Russell, col. Sidney, 
Armstrong, Cornish, &c., and wbo were 
the advisers of issuing out writs of quo 
warrantos against corporations, and who 
were their regulators, and also who were 
the public assertors of the dispensing 
power." The examinations taken before 
tills committee are printed in the Lords' 
Journals, 20th Dec. 1689 ; and there cer- 
tainly does not appear any want of zeal 
to convict the guilty. But neither the law 
nor tlie proofs would serve them. They 
could estabhsh nothing agiinst Dudley 
North, the tory sheriff of li»3, e.xcept 
that lie had named lord llus.-elTs panel 
himself, which, though inegnlar and 
doubtless ill-designed, had unluckily a 
precedent in the conduct of the famous 
whig sheriff, Slingsby Betbell. a man who, 
like North, though on the oppo-^ite side, 
cared more for his p.arty than f'lr decency 
and justice. Lord Halifax was a good 
deal burt in character by this ri'port, and 
never made a considerable figure after- 
wards, liurnet, 34. llis mortification 
led him to engage in an intrigue with the 
late king, which was discovered ; yet, 1 
suspect tbat, with his usual versatility, 
he again abandoned that cause before hia 
death. Ralph, 467. The ait of grace 
(2 W. & M. c. 10) contained a small num- 
i)er of exceptions, too many indeed for 
its name ; but probably there would have 
been difticulty in prevailing on the houses 
to pass it generally ; and iio one was ever 
molested afterwards ou account of hil 
conduct before the Revolution. 



Will. III. BILL FOR RESTORING CORPORATIONS. 327 

the matter Into his own hands by sending down an act of 
grace. 

I scarcely venture, at this distance from the scene, to 
pronounce an opinion as to the clause introduced gj^j.^^ 
by the whigs into a bill for restoring corporations, restoring 
which excluded for the space of seven years all '^o'-P"'-'^"""'- 
•who had acted, or even concurred, in surrendering charters 
from municipal offices of trust. This was no doubt intended 
to maintain tlicir own superiority by keeping the church or 
tory faction out of corporations. It evidently was not calcu- 
lated to assuage the prevailing animosities. But, on the other 
hand, the cowardly submissiveness of the others to the quo 
warrantos seemed at least to deserve this censure ; and the 
measure could by no means be put on a level in point ot 
rigor with the corporation act of Charles II. As the dis- 
senters, unquestioned friends of the Revolution, had been 
universally excluded by that statute, and the tories had lately 
been strong enough to prevent their readmission, it was not 
unfair for the opposite party, or rather for the government, 
to provide some security against men who, in spite of their 
oaths of allegiance, were not likely to have thoroughly ab- 
jured their former principles. This clause, Avhich modern 
historians generally condemn as oppressive, had the strong 
support of Mr. Somers, then solicitor-general. It was, how- 
ever, lost through the court's conjunction with the tories in 
the lower house, and the bill itself fell to the ground in tlie 
upper ; so that those who had come into corporations by 
very ill means retained their power, to the great disadvan- 
tage of the Revolution party, as the next elections made 
appear.-' 

But if the whigs behaved in these instances with too much 
of that passion which, though offensive and mischievous in 
its excess, is yet almost inseparable from patriotism and 
incorrupt sentiments in so numerous an assembly as the house 
of commons, they amply redeemed their glory by what cost 
them the new king's favor, their wise and admirable settle- 
ment of the revenue. 

The first parliament of Charles II. had fixed on 1,200,000^ 



1 Pari. Hist. 608, et pest. Journals, believe, almost entirely to his memory. 
2d and 10th Jan. 1689-9U. Burnet's ae- Ilalph and Somerville are scarce ever 
count is confused ani inaccurate, as is candid towards the whigs in this reign 
Tery commonly the case : he trusted, I 
VOL. II. — C. 22 



328 SETTLEMENT OF THE REVENUE. Chap. XV. 

as the ordinary revenue of the crown, sufficient in times of 
Settlement "° peculiar exigency for tlie support of its dignity 
of the and for the public defence. For this they provided 

revenue. various resourccs ; the hereditary excise on liquors 
granted in lieu of the king's feudal rights, other excise and 
custom duties granted for his life, the post-office, the crown 
lands, the tax called hearth-money, or two shillings for every 
house, and some of smaller consequence. These in the be- 
gi?ining of that reign fell short of the estimate; but before its 
termination, by the improvement of trade and stricter man- 
agement of the customs, they certainly exceeded that sum.' 
For the revenue of James from these sources, on an average 
of the four years of his reign, amounted to 1,500,964^. ; to 
which something more than 400,000/. is to be added for the 
produce of duties imposed for eight years by his parliament 
of 1685.2 

William appears to have entertained no doubt that this 
great revenue, as well as all the power and prerogative of 
the crown, became vested in himself as king of England, or 
at least ought to be instantly settled by parliament according 
to the usual method.^ There could indeed be no pretence for 
disputing his right to the hereditaiy excise, though this 
seems to have been questioned in debate ; but the commons 
soon displayed a considerable reluctance to grant the tempo- 
rary revenue for the king's life. This had usually been 
done in the first parliament of every reign. But the accounts 
for which they called on this occasion exhibited so consider- 
able an increase of the receipts on one hand, so alarming a 
disposition of the expenditure on the other, that they deemed 
it expedient to restrain a liberality which was not only likely 
to go beyond their intention, but to place them, at least in 
future times, too much within the power of the crown.* Its 

1 [Ralph puts the annual revenue about former ; a technical subtlety, against the 
1675 at 1,358,000?. ; but with an anticipa- spirit of the grant. Somers seems not to 
tion, that is. debt, upon it to the amount have come in to this ; but it is hard to 
of 866,954i. The expense of the army, collect the sense of speeches from Grey's 
navy, ordnance, and the fortress of Tan- memoranda. Pari. Hist. 139. It is not 
gier was under 700,000?. The rest went to be understood that the tories uuiver- 
to the civiUist, &c. Hist, of England, i. sally were in favor of a grant for life, 
290. — 1845.] and the whigs against it. But as the 

2 Pari. Hist. 150. latter were the majority, it was in their 

3 Burnet, 13 ; Ralph, 133, 194. Some power, speaking of them as a party, to 
of the lawyers endeavored to persuade have carried the measure. 

the house that the revenue, having been * [Davenant, whom I quote at present 
granted to James for his life, devolved to from Harris's Life of Charles II., p. 378, 
WiUiam during the natural life of the computes the hereditary excise on beer 



Will. m. APPROPRIATION OF SUPPLIES. 329 

average expenses appeared to have been 1,700,000?. Of 
this 610,000/. was the charge of the late king's army, and 
83,493Z. of the ordnance. Nearly 90,000Z. was set under the 
suspicious head of secret service, imprested to Mr. Guy, 
secretary of the treasury.^ Thus it was evident that, far 
from sinking below the proper level, as had been the general 
complaint of the court in the Stuart reigns, the revenue was 
greatly and dangerously above it ; and its excess might either 
be consumed in unnecessary luxury, or diverted to the worse 
purposes of despotism and corruption. They had indeed 
just declared a standing army to be illegal. But there 
could be no such security for the observance of this declara- 
tion as the want of means in the crown to maintain one. 
Their experience of the interminable contention about supply, 
which had been fought with various success between the 
kings of England and their parhaments for some hundred 
years, dictated a course to which they wisely and steadily 
adhered, and to which, perhaps above all other changes at 
this revolution, the augmented authority of the house of 
commons must be ascribed. 

They began by voting that 1,200,000/. should be the an- 
nual revenue of the crown in time of peace ; and Appropna- 
that one half of this should be appropriated to the tion of 
maintenance of the king's government and royal ®"^^ 
family, or what is now called the civil list, the other to the 
pubUc expense and contingent expenditure.^ The breaking 
out of an eight years' war rendered it impossible to carry 
into effect these resolutions as to the peace establishment: 
but they did not lose sight of their principle, that the king's 
regular and domestic expenses should be determined by a 
fixed annual sum, distinct from the other departments of 
public service. Tliey speedily improved upon their original 
scheme of a definite revenue, by taking a more close and 
constant superintendence of these departments, the navy, 
army, and ordnance. Estimates of the probable expenditure 
were regularly laid before them, and the supply granted was 
strictly appropriated to each particular service. 

This great and fundamental principle, as it has long 
been justly considered, that the money voted by parliament 

llone to have amounted, in 1G89, to the reliefs and wardships of military ton- 
694,498i. So extraordinarily good a bar- ure.] 
gain had the crown made for giving up i Pari. Hist. 187 

2 Id. 193. 



330 APPROPRIATION OF SUPPLIES. Chap. XV 

is appropriated, and can only be applied, to certain specified 
heads of expenditure, was introduced, as I liave before men- 
tioned, in the reign of Cliarles II., and generally, though not 
in every instance, adopted by his parliament. The unworthy 
house of commons that sat in 1685, not content with a need- 
,] less augmentation of the revenue, took credit with the king 
^^pt'^^'-' for not having appropriated their supphes.-' But from the 
... ^d Revolution it has been the invariable usage. The lords of 
1^ the treasury, by a clause annually repeated in the appropri- 

ation act of every session, are forbidden, under severe pen- 
alties, to order by their warrant any moneys in the exchequer, 
so appropriated, from being issued for any other service, and 
the officers of the exchequer to obey any such warrant. 
This has given the house of commons so effectual a control 
over the executive power, or, more truly speaking, has ren- 
dered it so much a participator in that power, that no admin- 
istration can possibly subsist without its concurrence ; nor 
can the session of parliament be intermitted for an entire 
year, without leaving both the naval and military force of 
the kingdom unprovided for. In time of wai', or in circum- 
stances that may induce war, it has not been vei'y uncom- 
mon to deviate a little from the rule of appropriation, by a 
grant of considerable sums on a vote of credit, which the 
crown is thus enabled to apply at its discretion during the 
recess of parliament ; and we have had also too frequent 
experience that the charges of public service have not been 
brought within the limits of the last year's appropriation. 
But the general principle has not perhaps been often trans- 
gressed without sufficient reason ; and a house of commons 
would be deeply responsible to the country, if through supine 
confidence it should abandon that high privilege which has 
made it the arbiter of court factions, and the regulator of 
foreign connections. It is to this transferrence of the exec- 
utive government (for the phrase is hardly too strong) from 
ihe crown to the two houses of parliament, and especially 
the commons, that we owe the proud attitude which P^ngland 
has maintained since the Revolution, so extraordinarily dis- 
similar, in the eyes of Europe, to her condition under the 
Stuarts. The supplies, meted out with niggardly caution by 
former parliaments to sovereigns whom they could not trust, 
have flowed with redundant profuseness when they could 

1 Pari. Hist. iv. 1359. 



Will. m. DISSATISFACTION OF THE KING. 331 

judge of llieir necessity and direct their application. Doubt- 
less the demand lias always been fixed by the ministers of 
the crown, and its influence has retrieved in some degree the 
loss of authority ; but it is still true that no small portion of 
the executive power, according to the established laws and 
customs of our government, has passed into the hands of 
that body Avhich prescribes the application of the revenue, aa 
well as investigates at its pleasure every act of the adminis- 
tration.^ 

The convention parliament continued the revenue as it 
already stood until December, IGOO.^ Their sue- Dissatisfao- 
cessors complied so far with the king's expectation tionof the 
as to grant the excise duties, besides those that '°^' 
were hereditary, for the lives of William and Mary, and 
that of the survivor.^ The customs they only continued for 
four years. They provided extraordinary supplies for the 
conduct of the war on a scale of armament, and consequently 
of expenditure, unparalleled in the annals of England. 
But the hesitation, and, as the king imagined, the distrust 
they had shown in settling the ordinary revenue, sunk deep 
into his mind, and chiefly alienated him from the whigs, who 
w-ere stronger and more conspicuous than their adversaries 
in the two sessions of 1689. If we believe Burnet, he felt 
so indignantly what appeared a systematic endeavor to reduce 
his power below the ancient standard of the monarchy, that 
he was inclined to abandon the government and leave the 
nation to itself. He knew well, as he told the bishop, what 
was to be alleged for the two forms of government, a mon- 
archy and a commonwealth, and would not determine which 
was preferable ; but of all forms he thought the worst was 
(bat of a monarchy without the necessary powern.* 

1 Hatsell's Precedents, iii. 80, et alibi ; the successor should only enjoy this rev- 
Hargrave's Juridical Arguments, i. 394. enue of excise till December, 1G93. In 

2 1 W. an-* M. sess. 2. c. 2. This was the debate on this subject in the new 
Intended as n provisional act " for the parliament, the tories, except Seymour, 
preventing all disputes and questions were for settling the revenue during the 
concerning the collecting, levying, and king's life ; but many whigs spoke oa 
assuring the public revenue due and the other side. Pari. Hist. 552. The 
payable in the reigns of the late kings latter justly urged that the amount of 
Charles 11. and James II., whilst the the revenue ought to be well known bo- 
better settling the same is under the fore they proceed to .»ettle it for an indef- 
lonsideration of the present parlia- inite time. The tories at that time had 
jnent." great hopes of the king's favor, and took 

s 2 W. and M. c. 3. As a mark of re- this method of securing it. 
spcyt no doubt, to the king and queen, * Burnet, 35. 
it was provided that, if both should die, 



332 DISSATISFACTION OF THE KING. Chap. XV. 

The desire of rule in William III. was as magnanimous 
and public-spirited as ambition can ever be in a human 
bosom. It was the consciousness not only of having devoted 
hims(ilf to a great cause, the security of Europe, and 
especially of Great Britain and Holland, against unceasing 
aggression, but of resources in his own firmness and sagac- 
ity which no other person possessed. A commanding force, 
a copious revenue, a supreme authority in councils, were not 
sought, as by the crowd of kings, for the enjoyment of self- 
ish vanity and covetousness, but as the only sure instru- 
ments of success in his high calling in the race of heroic 
enterprise which Providence had appointed for the elect 
champion of civil and religious liberty. We can hardly won- 
der that he should not quite render justice to the motives of 
those who seemed to impede his strenuous energies ; that he 
should resent as ingratitude those precautions against abuse 
of power by him, the recent deliverer of the nation, which it 
had never called for against those who had sought to enslave 
it. 

But, reasonable as this apology may be, it was still an un- 
happy error of William that he did not sufficiently weigh 
the circumstances which had elevated him to the English 
throne, and the alteration they had inevitably made in the 
relations between the crown and the parliament. Chosen 
upon the popular principle of general freedom and public 
good, on the ruins of an ancient hereditary throne, he could 
expect to reign on no other terms than as the chief of a 
commonwealth, with no other authority than the sense of the 
nation and of parliament deemed congenial to the new con- 
stitution. The debt of gratitude to him was indeed immense, 
and not sufficiently remembered ; but it was due for having 
enabled the nation to regenerate itself and to place barriers 
against future assaults, to provide securities against future 
misgovernment. No one could seriously assert that James II. 
was the only sovereign of whom there had been cause to com- 
plain. In almost every reign, on the contrary, which our 
history records, the innate love of arbitrary power had pro- 
duced more or less of oppression. The Revolution was 
chiefly beneficial as it gave a stronger impulse to the desire 
of political liberty, and rendered it more extensively attain- 
able. It was certainly not for the sake of replacing James 
by Wilham, with equal powers of doing injury, that the 



W'lLL. III. NO REPUBLICAN PARTY IN EXISTENCE. 333 

purest and wisest patriots engaged in that cause, but as the 
sole means of making a royal government permanently com- 
patible with freedom and justice. The bill of rights had 
pretended to do nothing more than stigmatize some recent 
proceedings : were the representatives of the nation to stop 
short of other measures because they seemed novel and 
restrictive of the crown's authority, when for the Avant of 
them the crown's authority had nearly freed itself from all 
restriction? Such was their true motive for limiting the 
revenue, and such the ample justification of those important 
statutes enacted in the course of this reign, which the king, 
unfortunately for his reputation and peace of mind, too jeal- 
ously resisted. 

It is by no means unusual to find mention of a common- 
wealth or republican party, as if it existed in some ^^ repubu- 
force at the time of the Revolution, and through- can party in 
out the reign of William III. ; nay, some writers, «^''''°'=^- 
such as Hume, Dalrymple, and Somerville, have, by putting 
them in a sort of balance against the Jacobites, as the ex- 
tremes of the whig and tory factions, endeavored to persuade 
us that the one was as substantial and united a body as the 
other. It may, however, be confidently asserted that no 
republican party bad any existence, if by that word we are 
to understand a set of men whose object was the abolition of 
our hmited monarchy. There might unquestionably be per- 
sons, especially among the independent sect, who cherished 
the memory of what they called the good old cause, and 
thought civil liberty irreconcilable with any form of regal 
government. But these were too inconsiderable, and too far 
removed from political influence, to deserve the appellation 
of a party. I believe it would be diHicult to name five indi- 
viduals to whom even a speculative preference of a common- 
wealth may with probability be ascribed. Were it other- 
wise, the numerous pamphlets of this period would bear 
witness to their activity. Yet, with the exception perhaps 
of one or two, and those rather equivocal, we should search, 
I suspect, the collections of that time in vain for any mani- 
festations of a republican spirit. If indeed an ardent zeal 
to see the prerogative effectually restrained, to vindicate that 
high authority of the house of commons over the executive 
administration which it has in fact claimed and exercised, to 
purify the house itself from corrupt influence, if a tendency 



334 



EMPLOYaiEXT OF TORIES IN MINISTRf. Chap XV 



to dw(!ll upon the popular origin of civil society, and the 
principles which Locke, above other writers, had brought 
again into fashion, be called republican (as in a primary but 
less usual sense of the word they may), no one can deny 
that this spirit eminently characterized the age of William 
III. And schemes of reformation emanating from this 
source were sometimes offered to the world, trenching moi'e 
perhaps on the established constitution than either necessity 
demanded or prudence warranted. But these were anony- 
mous and of little influence ; nor did they ever extend to 
the absolute subversion of the throne.-' 

Wilham, however, was very early lead to imagine, whether 
wuuamem- through the insinuations of lord Nottingham, as 
ploys tcries Burnet pretends, or the natural prejudice of kings 
la minit, ry. ggj^jjjgj thosc who do not Comply with them, that 
there not only existed a republican party, but that it num- 
bered many supporters among the principal whigs. He 
dissolved the convention parliament, and gave his confidence 
for some time to the opposite faction.^ But among these a 
real disaffection to his government prevailed so widely that 



1 See the Somers Tracts ; but still 
more the collection of State Tracts in the 
time of William III., in three volumes 
folio. These are almost entirely on the 
■whig side ; and many of them, as I have 
intimated in the text, lean so far towards 
republicanism as to a.ssert the original 
sovereignty of the people in very strong 
terms, and to propose various changes in 
the constitution, such as a greater equal- 
ity in the representation. But I have 
not observed any one which recom- 
mends, even covertly, the abolition of 
hereditary monarchy. [It may even be 
suspected that some of these were really 
intended for the benefit of J.ames. See 
one in Somers Tracts, x. 148, entitled 
'• Good Advice before it be too late, being 
a Breviate for the Convention." The tone 
is apparently republican ; yet we find the 
advice to be no more than imposing great 
restrictions on the king during his life, 
but not to prejudice a protestaut suc- 
cessor; in other words, the limitation 
scheme proposed by Halifix in 1679. It 
may here be observed that the political 
tracts of this reign on both sides display 
a great deal of close and vigorous rea- 
soning, and may well bear comparison 
with those of much later periods. — 
1845.] 

- The sudden dissolution of this par- 
liament cost him the hearts of thost who 
bad made him king. Besides se • 'ral 



temporary writings, especially the Im 
partial Inquiry of the earl of Warring 
ton, an honest and intrepid whig (Ralph, 
ii. 188), we have a letter from Mr. Whar 
ton (afterwards marquis of Wharton) to 
the king, in Dalrymple, Appendix, p. 80. 
on the change in his councils at this 
time, written "in a strain of bold and 
bitter expostulation, especially on the 
score of his employing those who had 
been the servants of the late family, 
alluding probably to Godolphin, who was 
indeed open to much exception. " I 
wish," says lord Shrewsbury, in the 
same year, "you could have established 
your party upon the moderate and 
honest-principled men of both factions ; 
but, as there be a necessit}' of declaring, 
I shall make no difficulty to own my 
sense that your majesty and the govern- 
ment are much more safe depending 
upon the whigs, whose designs, if- any 
against, are improbable and remoter, 
than with the tories, who many of them, 
questionless, would bring in king James; 
and the very best of them, I doubt, have 
a regency still in their heads ; for, though 
I agree them to be the properest instru- 
ments to carry the prerogative high, yet 
1 fear they have so unreasonable a ven- 
eration for monarch}', as not altogether 
to approve the foundation yours is builJ 
upon." Shrewsbury Correspond 15. 



\V ILL. III. INTRIGUES WITH THE LATE KING. 



335 



he could with clifficiilty select men sincerely attached lo it. 
The majority professed only to pay allegiance as to a sov- 
ereign de facto, and violently opposed the bill of recognition 
in 1690, both on account of the words " i-ightful and lavcful 
King " which it applied to William, and of its declaring the 
laws passed in the last parliament to have been good and 
valid. ^ They had influence enough with the king to defeat 
a bill proposed by the whigs, by which an oath of abjuration 
of James's right was to be taken by all persons in trust.^ It 
is by no means certain that even those who abstained from 
all connection with James after his loss of the throne would 
have made a strenuous resistance in case of his lauding to 
recover it.^ But we know that a large proportion . 
of the tories were engaged in a confederacy to with the 
support him. Almost every peer, in fact, of any ^^.teiiing. 
consideration among that party, with the exception of lord 
Nottingham, is implicated by the secret documents which 
Macpher.-on and Dalrymple have brought to light ; espe- 
cially Godolphin, Carmarthen (Danby), and Marlborough, 



» Pari. Hist. 575 ; Ralph, 194 ; Burnet, 
41. Two remarl<able protests were en- 
tered on the journals of the lords on 
occasion of this bill ; one by the whigs, 
who were outnumbered on a particular 
division, and anotner by the tories on 
the passing of the bill.' They are both 
vehemently expressed, and are among 
the not very numerous instances where- 
in the original whig and tor3' principles 
have been opposed to each other. The 
tory pi'otest was expunged by order of 
the house. It is signed by eleven peers 
and six bishops among whom were Stil- 
lingfleet and Lloyd. The whig protest 
has but ten signatures. Tlie convention 
had alreadj' passed an act for preventing 
doubts concerning their own authority, 
i W. & M. Btat. 1, 0. 1, which could, of 
course, have no more validity than they 
were able to give it. This bill had been 
much opposed by the tories. Pari. Hist, 
v. 122. 

In order to make this clearer, it should 
bo observed that the convention which 
restored Charles 11., not having been 
summoned by his writ, was not reckoned 
by some royalist lawyers capable of 
passing valid acts; and consequently all 
the statutes enacted by it were confirmed 
by the authority of the next. Clarendon 
lays it down as undeniable that such 
confirmation w.is necessary. Neverthe- 
less, this objcption having been made in 
the couit of king"a bench to one of their 



acts, the judges would not admit it to be 
disputed, and .said that the act, being 
made by king, lords, and commons, they 
ought not now to pry into any defects of 
the circumstances of calling them to 
gether. neither would they suffer a point 
to be stirred wherein the estates of so 
many were concerned. Ileath v. Pryn, 
1 Ventris, 15. 

- Great indulgence was shown to the 
a.ssertors of indefeasible right. The lords 
resolved that there should be no penalty 
in the bill to di.sable any per.son from 
pitting and voting in either house of par- 
liament, .lournals, May 5, 1690. The 
bill was rejected in the commons by 192 
to 178. Journals, April 26 ; Pari. Hist. 
594 ; Burnet, 41, ibid. 

'■' Some English subjects took .Tames s 
commission, and fitted out privatecia 
which attacked our ships. They were 
taken, and it was resolved to try them as 
pirates; when Dr. Oldys, the king's ad- 
vocate, had the assurance to object that 
this could not be done, as if James had 
still the .prerogatives of a sovereign 
prince by the law of nations. He w.is, 
of course, turned out, and the men 
hanged ; but this is one instance among 
many of the difficulty under which the 
government labored through the unfor- 
tunate distinction of facto and jure. 
Ralph, 423. Tlie boards of customs an(J 
exci.ie were filled by Godolphin with 
Jacobites. Shrewsb. Corresp. 51. 



336 



mXRIGUES WITH THE LATE KING, Chai XV 



the second at that lin^e prune minisler of William (as he 
might justly be called), the last with circumstances of ex- 
traordinary and abandoned treachery ^ towards his country as 



1 The name of Carmarthen is perpet- 
ually mentioned among those whom the 
late king reckoned his friends. Macpher- 
Bon's Papers, i. 457, &c. Yet this con- 
duct was so evidently against his interest 
that we may perhaps believe him insin- 
cere. William was certainly well aware 
that an extensive conspiracy had been 
formed against his throne. It was of 
great importance to learn the persons 
involved in it and tlieir schemes. May 
we not presume that lord Carmarthen's 
return to his ancient allegiance was 
feigned, in order to get an Insight into 
the secrets of that party ? This has al- 
ready been conjectured by Somerville (p. 
B95) of lord Sunderland (who is also im- 
pUcated by Macpherson's publication), 
and doubtless with higher probability ; 
for Sunderland, always a favorite of Wil- 
Uam, could not without insanity have 
plotted the restoration of a prince he 
was supposed to have betrayed. It is 
evident that William was perfectly master 
of the cabals of St. Germain's. That little 
court knew it was betrayed, and the sus- 
picion fell on lord Godolphin. Dalryuiple, 
189. But I think Sunderland and Car- 
marthen more hkely. 

I should be inclined to suspect that by 
some of this double treachery the secret 
of princess Anne's repentant letter to 
her father reached William's ears. She 
had come readily, or at least without 
opposition, into that part of the settle- 
ment which postponed her succession, 
after the death of Mary, for the re- 
mainder of the king's life. It would, 
indeed, have been absurd to expect that 
Williaui was to descend from his throne 
in her favor; and her opposition could 
not have been of much avad. But, when 
the civil list and revenue came to be 
settled, the tories made a violent effort to 
secure an income of 70,000^. a-year to her 
and her husband. Pari. Ilist. 492. As 
this on one hand seemed beyond all fair 
proportion to the income of the crown, 
so the whigs were hardly less unreason- 
able in contending that she should de- 
pend altogether on the king's generosity ; 
especially as by letters-patent jn the late 
reign, which they affected to call in ques- 
tion, she had a revenue of about S0,000i. 
In the end the house resolved to address 
the king that he would make the princess's 
income 50.000Z. in the whole. This, how- 
ever, left an irreconcilable enmity, which 
the artifices of Marlborough and his wife 
•were em ployed to aggravate. They were 
accustomed, in the younger sister's little 



court, to speak of the queen with severity, 
and of the king with rude and odious 

epithets. Marlborough, however, went 
much farther. He brought that narrow 
and foolish woman into his own dark in- 
trigues with St. Germain's. She wrote 
to her father, whom she had grossly, and 
almost openly, charged with imposing a 
spurious child as prince of Wales, suppli-